By Michael H. Markovitch, Esq.
On April 17, 2013, the bipartisan group of senators known as the "Gang of Eight" introduced S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act
." We commend the Senators for their work on the proposed bill. Below are eight initial points of interest taken from the bill's provisions.More analysis to follow in the upcoming weeks.
Just to barely scratch the surface, here are but a few things S.744 would do:1. Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card. Includes generous provisions for DREAMers and agricultural workers.
2. Family-Based Immigrants: Move the current FB-2A category (spouses and children of permanent residents) into the immediate relative classification, allow for derivatives of immediate relatives, eliminate the FB-4 category (brothers and sisters of U.S. citizens), cap the age of eligibility of married sons and daughters of U.S. citizens at 31, and bring back the V visa.
3. Employment-Based Immigrants: Exempt the following categories from the quota: EB-1 immigrants (priority workers), doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. Add a new "EB-6" category for certain entrepreneurs.
4. Temporary Workers: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for "at-will" workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.
5. Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.
6. E-Verify: Require all employers to be on the system after 5 years.
7. H-1Bs: Increase the quota to a floor of 110,000 and a ceiling of 180,000, increase the U.S. advanced degree exemption to 25,000 but limit it to STEM graduates, add a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, add a non-displacement attestation, change the prevailing wage formula, provide employment authorizations for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.
Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous "immigration service provider" at the federal level.
By: Michael H. Markovitch, Esq.
Previous statistics for H-1B
cases show that planning in advance of April 1st for the H-1B visa
is the key to actually being one of the 65,000 successful H-1B visa
It is that time of year again! April 1, 2013 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (DOL) for Labor Condition Applications (LCA) and H-1B visa petitionsfor employment in the fiscal 2013-2014 year (FY 2013). Our advice to H-1B employers continues to be that they need to think about filing H-1B petitions on (or very close to the) April 1st deadline for new and existing employees (usually international students in Optional Practical Training [OPT]) who will be eligible for first-time H-1B visas to begin their employment on or after October 1st, 2013.
By way of background, each Fiscal Year (FY), Congress mandated an annual cap of 65,000 H-1B visas for "professional and specialty occupation workers" who possess the equivalence of a U.S. Bachelor's Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master's Degree or other advanced degrees from U.S.Colleges or Universities.
Some cases are NOT subject to the cap. For example, Institutions of Higher Education and Government Research Organizations are H-1B Cap exempt organizations. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa
cap are also not included in the annual cap. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas
are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.
In 2008, there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B during their OPT. At that time, a regulation was promulgated that provided "cap-gap" relief for F-1 students with approved H-1B petitions if the H-1B was filed while the student was still in a period of approved work authorization. In other words, F-1 student visa holders who received work authorization in OPT were permitted to extend the authorized work authorization and period of stay until October 1st as long as they have received an approved H-1B visa prior to the expiration of their OPT.
Also, many Science, Technology, Engineering, and Mathematics (STEM) students continue to use the STEM extension as a way to get two (2) bites at the apple and to obtain the additional time they need to petition in a subsequent H-1B cycle. To get the STEM extensions, an employer needs to be enrolled in E-Verify. Now E-Verify allows the public to view which are and which are not E-Verify employers.
In the past, the H-1B filing period lasted for several months. This past year, the H-1B allocation went faster. There have been periods in the past when the H-1B allotment was actually exhausted within three (3) days of the H-1B visas
becoming available on April 1st. This required the USCIS to conduct a "lottery". It is likely that the demand for H-1B visas
this fiscal year beginning on April 1, 2013, may be greater than it was for last year. We keep hearing that "economic recovery" continues in 2013. For this reason, it is strongly advisable that H-1B employers consider filing on April 1st, 2013, or as close to April 1st, as possible.
U.S. State Department recently announced that the Online registration
for the DV-2014 Program will begin on Tuesday, October 2, 2012 at 12:00
noon, Eastern Daylight Time (EDT) (GMT-4), and conclude on Saturday,
November 3, 2012 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4).
What is the Green Card Diversity Visa Program?
The Diversity Immigrant Visa program is a United States congressionally-mandated lottery program for receiving a United States Permanent Resident Card. It is also known as the Green Card Lottery. The lottery is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). The Act makes available approximately 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.
The visas are distributed on a regional basis, with each region sending fewer immigrants to the US in the previous 5 years receiving more diversity visas. Currently, Africa and Europe receive about 80% of the visas in the lottery. In addition, no single country can receive more than 7% of the total number of visas (3,500).
In order to allow for those who do not pursue immigrant visas, more ‘winners’ are selected in the lottery than there are visas available. Hence being selected from the lottery does not guarantee an immigrant visa to the U.S. To receive adiversity visa and immigrate to the United States, ‘winners’ must meet all eligibility requirements under U.S. law. Requirements include at least a high school diploma, or its equivalent, or two years of work experience in an occupation requiring at least two years training.
Michael H. Markovitch, Esq. has thirty years of experience in representing individuals with their immigration needs. Please feel free to contact Michael H. Markovitch, Esq. for any additional questions you may have regarding the U.S. DV 2014 Lottery Program or other immigration matters.
Michael H. Markovitch, Esq. August 21, 2012
An EB-5 visa is an option for high net worth immigrant investors looking to obtain a U.S. green card, or permanent resident status, for themselves and their children.
There are two ways to obtain an EB-5 visa. In the first, a foreign national must invest one million dollars directly into a new or existing business and create or preserve at least ten jobs for U.S. workers, not including the investor and his family members. In this instance the investor actively manages the investment. The investment can be $500,000 if made in a "Targeted Employment Area," a rural area or an area with high unemployment.
The second option for EB-5 visa investors is the regional center program. A regional center is an investment vehicle managed by a third party and approved by the USCIS (US Citizen and Immigration Services). This program allows developers to pool foreign funds and invest the capital into qualified projects. Generally these approved projects are within the "Targeted Employment Areas" and allow for the $500,000 investment amount. Additionally, the regional center program will count indirect job creation so long as the jobs created are within the region.
In the fiscal year 2012, more than 90% of foreign investors seeking EB-5 visas did so through the regional center program. This is attributed to the lower investment amount and relaxed job creation requirements of the program.
Choosing the proper regional center is critical to having an EB-5 visa approved and to recouping investment capital, hopefully with a modest rate of return. Once approved, the petitioner and his family are granted conditional permanent residence status for two years. An I-829 petition is then required to remove the "conditions" and allow the investor and his family to reside in the U.S. indefinitely.
Currently, there are approximately 200 regional centers approved by the USCIS and operating in 40 plus states. But selecting a qualified regional center project for a foreign investor is not a simple task. Even choosing an EB-5 consultant can be complicated since some are affiliated with specific regional centers lending geographic expertise but at the same time, they are often not wholly independent advisors.
In evaluating a regional center project, a potential investor should consider the following:
Track Record of the Regional Center: Look at the regional centers' history. Does it have a substantial record of successful I-526 (Alien Entrepreneur form required with documents supporting EB-5 Visa petition) and I-829 approvals? The ratio of those filed to those approved is key; as is a significant number of approvals.
Pre-approval of the Project: Did the USCIS pre-approve the project? While not binding on the USCIS, it is an added level of security for an investor. Avoid projects with I-526 denials.
Experience of the Management Team: How much experience does the managing partner have with immigrant investor programs? How much experience do they have in developing projects and bringing them to fruition? With developing projects that create jobs? Familiarity with the EB-5 job creation requirements and a track record of successful compliance with the requirements is important.
How the Job Creation Requirement will be met: Consider the developer's projected estimates, how they were derived and their reasonableness. If the regional center is affiliated with a government agency, they might have additional experience in creating jobs. Look for a project with detailed job creation monitoring and reporting.
How the money will be handled: Will there be an escrow account to hold the money until approval is granted. Will the money be returned if there is a denial? Be aware that while the investment amount is generally $500,000, regional centers often have costs and fees that can range from $35,000 to $70,000. Evaluate these costs and fees and ask whether the investor's legal fees will be included in this amount.
Return on investment: What has the historical rate of return been for investors in the regional center? When will the investor be able to redeem their investment? What type of investment will the developer make with the funds? Seek a professional financial advisor to assess the related risks and exit strategy.
The capital structure: What percentage of the capital is EB-5 money? The investor may feel more secure if the developer is significantly invested as well. Also consider if there sufficient capital to ensure the completion of the project. In other words, are there enough investors and if not, how well does the regional center market their investment opportunities to increase the likelihood of success?
View more about Obtaining a Green Card Through Investment
– The EB-5 Program
President Barack Obama effectively passed the Dream Act a few days ago without Congressional approval, announcing that the administration would halt the deportation of eligible individuals and issue them work cards for two year periods.
To be eligible, individuals must show the following:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States as of June, 2012;
- Are currently in school, or have graduated from high school, or have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Are not above the age of thirty.
The announcement further indicated that qualified applicants who are already in deportation proceedings will have their deportation halted and be eligible for the relief. It is estimated that this change in policy could affect more than 800,000 immigrants.
While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days. To find out how this may affect you or someone you know, please feel free to contact this office.
The Relief from Removal process can take one of the following paths:
- Voluntary Departure: Someone who has been found to be removable is permitted to leave the country at his/her own expense by a specified date, but without the stigma of a deportation.
- Cancellation of Removal: In this case, the judge simply stops the removal process.
- If you are a Lawful Permanent Residents (LPR), then you are eligible for Cancellation of Removal if you meet the following criteria:
- You have lived in the U.S. continuously for seven years since entering the country.
- You have been an LPR for at least five years.
- You have never been convicted of an aggravated felony, are not a terrorist, crewman or exchange visitor.
- You have never before been granted Cancellation of Removal.
- If you are not an LPR (i.e. you are an undocumented alien), you must meet the following criteria to be eligible for Cancellation of Removal:
- You have lived in the U.S. continuously for ten years.
- You were never served with an NTA during that period and have never been convicted of an aggravated felony.
- You were a “person of “good moral character” during that period.
- You can show that your being deported would cause extreme hardship for your spouse, parent or child and that that person is either a U.S. citizen or LPR.
- Adjustment of Status: This involves changing your status from non-lawful to lawful permanent resident. The following conditions apply:
- You qualify as “admissible” for permanent residence, as defined by the INA. This means you are free of communicable diseases, have no aggravated felonies on your record and do not pose a terrorist or espionage threat.
- You must immediately qualify for an immigrant visa. This usually means that an immediate family member who is a citizen or LPR, or your employer, has filed a petition for your visa, and the visa is immediately available, as opposed to having to wait for it to become available.
- You did not enter the U.S. illegally.
- You did not violate any restrictions on your temporary visa, if you had one.
- Asylum: An alien who qualifies as a refugee can apply for asylum. To do this, you must meet the following conditions:
- You show that you have suffered persecution in the past in your home country, or that you have a well-founded fear of persecution if you return.
- You file your asylum application within one year of arriving in the U.S. and have not been convicted of a crime.
- The Department of Homeland Security does not consider you a danger to national security.
- Other options for appealing include filing a Motion to Reopen or Reconsider, requesting a Stay of Removal, filing for an administrative appeal, or filing a judicial appeal for review by a Federal court.
Individuals facing deportation proceedings should consult with a legal professional to ensure that their rights are properly and professionally protected. Law Offices of Michael H. Markovitch has successfully handled a wide range of deportation cases. Our office represents a range of immigration law matters including family-based and employment-based immigration, as well as citizenship and naturalization proceedings. If you have any questions or comments, please feel free to email Michael H. Markovitch, Esq. at: Michael@mmlawnyc.com . You can also visit us at: www.immigrationlawyernewyork.com.