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EB-5 or EB-6 — Which Investor Visa is for You? PDF Print E-mail

The EB-5 visa for Immigrant Investors is a United States visa that allows foreign nationals who invest money in the United States to obtain permanent residency (green card ).  The usual investment threshold is $1 million (or $500,000 in a high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers excluding the investor and their immediate family.  

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Startup Visa Immigration Programs in USA & Canada PDF Print E-mail

There has been a lot of recent focus on the new proposed Startup Visa amendment to the U.S. immigration law.  This amendment would create a new immigrant visa category for entrepreneurs who have raised capital from qualified American investors.  This is a new employment based visa category — EB-6, and grants conditional permanent residency to the entrepreneur, who would be otherwise unable to avail of other existing immigrant visa categories such as EB-1 (Priority Worker) or EB-5 (the so-called investment visa).  

The conditional residency can then convert to a permanent residency (green card) after two years if certain conditions are fulfilled.  Last week the Senate passed a bill containing this amendment by a vote of 68-32.  Before it becomes the law, the bill still has to pass the next hurdle in the House of Representatives.

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Is the O Visa for Extra-Ordinary Ability for You? PDF Print E-mail
Are you one of the top people in your field or have you won a major international award or have you received national or international acclaim and recognition in your field of work? If so, you may qualify for an O visa.
O visas are issued to non-immigrants with extra-ordinary ability in the sciences, arts, education, business, or athletics.
No Numerical Cap:
Although there is no numerical cap on the annual admissions of these non-immigrants, O visas require that its visa holders must intend to work in the area of extra-ordinary ability claimed.
No Limit on Duration of Stay:
Another advantage of the O visa is that there is no explicit statutory limitation on the period of stay for O visa holders.  An initial period of stay can be approved for 3 years and extensions of stay for an O-1 visa holder can be granted in increments of 1 year.
Pending GC application is OK:
An O visa holder can have a green card application pending while on an O-1 status and the O-1 beneficiary does not need to show that s/he is maintaining a residence abroad to which s/he intends to return.
Free-lancing is not allowed:
An O visa holder can only be admitted to perform services in “specific, identified events, performances, competitions, or engagements” and an O-visa holder cannot enter the United States to free lance
.Application process:
The procedure for an O visa is in three steps:
(1)    An O beneficiary cannot petition for himself and an employer, manager or agent is required to sign the application form and generally, a petition can be approved only after the employer, manager, or agent consults with a peer group, management organization, or labor organization, who attests that they have no objection to the applicant being granted an O visa.
(2)    An approval by the USCIS of an O petition supported by the above mentioned advisory opinion from an employer, manager, or agent.
(3)    Issuance by a U.S. Consulate of an O visa based on the approved petition.
If you are not sure whether you qualify for an O visa or if you need additional guidance, feel free to contact our office.
If you would like to like to see a particular topic/issue covered in future issues please send me an email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW e-Sandesh” as the subject.
Hanishi T. Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/
Follow us on Twitter at: http://twitter.com/immigrationinfo
Are you one of the top people in your field or have you won a major international award or have you received national or international acclaim and recognition in your field of work? If so, you may qualify for an O visa. O visas are issued to non-immigrants with extra-ordinary ability in the sciences, arts, education, business, or athletics.

No Numerical Cap:Although there is no numerical cap on the annual admissions of these non-immigrants, O visas require that its visa holders must intend to work in the area of extra-ordinary ability claimed.
Read more...
 
Thinking of Applying for a Green Card for your Parents or Other Immediate relatives – Now is a Great Time! PDF Print E-mail

Have you been thinking of applying for a green card for your parents or other immediate relatives who are living abroad and that you would like to bring to the U.S.? If so, now is a great time to consider filing a petition for your immediate relatives, as projected times to complete processing are at an all time low. This article discusses the basics of benefits, eligibility criteria, and process of applying for a green card for an immediate relative, but it cannot be considered legal advice or replace the value of an individual consult with an immigration attorney who is able conduct a complete analysis based on  individual circumstances.

Immediate Relatives:

Immediate relatives are the most favored category of family members and are not subject to numerical limits, which in essence means that they are immediately eligible to apply for a visa. This also means that immediate relatives are not subject to the visa allocation system as other family based green card preference categories. Immediate relatives include:

  • Parents of U.S. Citizens who are over 21 years old,
  • Unmarried children (under 21 years old) of U.S. Citizens, and
  • Spouses of U.S. Citizens.

Benefits:

Benefits of a legal permanent resident or a green card are several:

  • Ability to enter the United States without requiring a visa ;
  • Ability to take up gainful employment upon arriving into the United States without requiring a sponsor or a pre-arrange an approved job offer.
  • Ability to apply for a U.S. Citizenship eventually

Eligibility Criteria:

In order to be able sponsor an immediate relative you must:

  • Be a U.S. citizen and provide documentation such as a naturalization certificate and/or a U.S. passport to show your status
  • Meet an income threshold and support the relative you are sponsoring at 125% above the mandated poverty line.

Process :

  1. It must be shown that the immediate relative being sponsored is eligible for immigration and that a qualifying family relationship exists and that the sponsor is a U.S. citizen or a permanent resident. It must also be shown that the immediate relative is admissible to the United States and not deportable.
  2. In most family sponsored immigrant visa cases, the U.S. citizen or permanent resident must file an immigrant visa petition on Form I-130 (Petition for Alien Relative);
  3. Concurrent filing of the immigrant visa petition and the application for permanent residence is allowed in certain family sponsored cases, and this is called filing for an adjustment of status application, filed on Form I-485. The biggest advantage of adjusting status is the ability of the immediate relative to get the permanent status i.e. green card without having to leave the United States. To take advantage of the adjustment of status process, the immediate relative of the U.S. citizen must not only be in the U.S. but must also have proof of  lawful entry in to the United States. However, the U.S. citizen sponsor must be aware of the legal concept of non-immigrant intent and that when an immediate relative entered into the United States with a visitor’s visa s/he demonstrated an intent to return to her/his home country and that applying for a lawful permanent resident status could be perceived to be contrary to the intent represented and therefore could be considered a violation of her or his visa terms. Therefore, in situations where an adjustment of status is sought, it is advisable to consult an immigration attorney.

As mentioned earlier, the turnaround time for a green card for an immediate relative along with concurrent filing for an adjustment of status is relatively fast at present and is taking approximately 5 months at the time of writing this article. So, if you have been thinking about applying for a green card for any of your immediate relatives - now is a great time to take advantage!

 

Hanishi  T. Ali is an immigration and international business attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at:http://immigrationinfo.wordpress.com/

 

The article was originally published at Lokvani.

 
“Effects of Divorce or separation on your Immigration Status.” Boston South Asian. February 2010. PDF Print E-mail

A special article that discusses 'Maintaining a Valid I-94'.

"This article provides basic information about the effects of divorce or legal separation on one’s immigration status where a foreigner marries a US citizen (USC) or a legal permanent resident (LPR) and is given an immigrant benefit because of the marriage. Where a couple is contemplating divorce or separation, it is important for the foreign spouse to understand the impact a divorce or separation can have on his or her immigration status. It should also be pointed out that marriage to a USC does not automatically confer any type of immigration status on the foreign spouse." The full text is available on page 17

 
Stricter H1B Evidence Requirement PDF Print E-mail
Stricter H-1B Evidence Requirements and Eligibility Standards to be Imposed
The U.S. Citizenship and Immigration Services (USCIS) through a recent memo has issued guidance and clarification as to what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memo also discusses the type of evidence H-1B petitioners may have to provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.
Although the new USCIS guidance does not change any of the requirements for an H-1B petition, it establishes enhanced evidence requirements on employers who will be filing H-1B petitions. This means employers will be required to provide more detailed documentation than before. The employer petitioning for an H-1B visa will not only have to show that a valid employer-employee relationship exists between itself and the employee but will continue to comply with all the requirements for an H-1B petition including:
• Establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
• Demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
• Filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
So for instance, if you are an employer who will be employing an H-1B visa holder to perform services in more than one work location, you will have to submit a complete itinerary of services or engagements as well as file an LCA specific to each work location for the H-1B visa holder
The guidance also means that H-1B petitions for independent contractors, third-party placements and self-employed workers may not qualify for the H-1B classification if the employer is not able to show that an employer-employee relationship exists and it has a right of control. Instances of demonstrating control over the employee include the employer’s ability to show it has control over that H-1B visa holder’s assignment, daily tasks, and progressive reviews.
As a result of the guidance offered by USCIS, employer can expect to see an increase in documentation required as part of new, transfers and extensions of H-1B petitions.
We will continue to monitor the effect of the new guidance memo so please see our blog at http://immigrationinfo.wordpress.com/for updates.  We will be holding an informative webinar for employers, HR managers, or employment representatives of companies, on February 23rd from 11 a.m. EST where we will review the new memo and the new documentation requirements.  Please email us at info@mithraslaw to reserve your spot now.
Hanishi  T. Ali is an attorney at Mithras Law Group, a Westborough based immigration and international business law firm. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/ on Twitter at: http://twitter.com/immigrationinfo

Stricter H-1B Evidence Requirements and Eligibility Standards to be Imposed

The U.S. Citizenship and Immigration Services (USCIS) through a recent memo has issued guidance and clarification as to what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memo also discusses the type of evidence H-1B petitioners may have to provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Although the new USCIS guidance does not change any of the requirements for an H-1B petition, it establishes enhanced evidence requirements on employers who will be filing H-1B petitions. This means employers will be required to provide more detailed documentation than before. The employer petitioning for an H-1B visa will not only have to show that a valid employer-employee relationship exists between itself and the employee but will continue to comply with all the requirements for an H-1B petition including:

  • Establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
  • Demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and 
  • Filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

So for instance, if you are an employer who will be employing an H-1B visa holder to perform services in more than one work location, you will have to submit a complete itinerary of services or engagements as well as file an LCA specific to each work location for the H-1B visa holder.

The guidance also means that H-1B petitions for independent contractors, third-party placements and self-employed workers may not qualify for the H-1B classification if the employer is not able to show that an employer-employee relationship exists and it has a right of control. Instances of demonstrating control over the employee include the employer’s ability to show it has control over that H-1Bas  visa holder’s assignment, daily tasks, and progressive reviews.

As a result of the guidance offered by USCIS, employer can expect to see an increase in documentation required as part of new, transfers and extensions of H-1B petitions.

We will continue to monitor the effect of the new guidance memo so please see our blog at http://immigrationinfo.wordpress.com/for updates.  We will be holding an informative webinar for employers, HR managers, or employment representatives of companies, on February 23rd from 11 a.m. EST where we will review the new memo and the new documentation requirements.  Please email us at info@mithraslaw to reserve your spot now.  Hanishi  T. Ali is an attorney at Mithras Law Group, a Westborough based immigration and international business law firm. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/ on Twitter at: http://twitter.com/immigrationinfo

Article was originally published on ISWOnline

 
Is a Green card holder spouse’s right to obtain citizenship after divorce jeopardized? PDF Print E-mail

This article provides basic information about how a divorce can affect a spouse’s citizenship or naturalization application where a green-card holder spouse (an immigrant spouse),  marries a US citizen (USC) and has received his/her green card/permanent residency through marriage. So where an immigrant spouse is contemplating divorce or has obtained a divorce decree it is important to understand the consequences of  a divorce on a naturalization/citizenship application.

Assuming, that the marriage was not a sham or for fraudulent purposes, divorce does not adversely affect a spouse’s immigration status after the immigrant spouse has obtained an unconditional green card or permanent residence and in such instances a divorce will not invalidate the green card or cause the U.S. Citizenship and Immigration Services (USCIS) to deny a citizenship application automatically. More importantly, the sponsoring USC spouse cannot take the right away or attempt to revoke the green card from the immigrant spouse.

A divorce, however, may pose doubts and require the divorced immigrant spouse seeking to obtain U.S. Citizenship to reassure the USCIS interviewing officer that the marriage was not a sham. A good way to prove that your marriage was genuine is to take copies and originals of documents that show that you and your ex-spouse lived together, had joint bank accounts, and shared important and memorable moments during your time together. Examples of documents include, home title or rent receipts or home lease in both names, joint bank account statements, credit card statements, photographs of both spouses on vacation, birth certificates of children born during the marriage, etc.

Also, a divorce can delay an immigrant spouse’s right to obtain citizenship. For instance, a divorced immigrant spouse who was married to a U.S. citizen will not be able to take advantage of the short three year residency requirement, if the spouse is not married to the U.S. citizen for at least three years before the naturalization exam date. In essence, if the immigrant spouse divorces the U.S. citizen spouse before three years of marriage have passed, then s/he will have to wait until the normal five year residency requirement has elapsed before s/he is eligible to apply to become a naturalized U.S. Citizen and cannot take advantage of the three year residency requirement.

Depending on each individual’s personal circumstances, the immigration consequences can be varied and it is therefore recommended that you consult with a qualified immigration attorney to discuss your options and strategize before making a hasty decision.

Next month, I will address the implications of a divorce where a spouse has not yet obtained a green card or is in process of obtaining a green card, as a result of the marriage, and instances where a spouse has a conditional green card.

Hanishi  T. Ali is an immigration and international business attorney at Mithras Law Group, a Westborough based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.   Firm Blog at:http://immigrationinfo.wordpress.com/ On Twitter at:http://twitter.com/immigrationinfo

This article was originally published on Lokvani

 
Criminal Record Can Affect Immigration Status PDF Print E-mail

If you are not a US Citizen and have a criminal record of any sort, it has become increasingly important to know and understand the immigration consequences on your immigration status.

This article explores how having any contact with the criminal justice system can affect a non-US citizen’s immigration status. A non-US citizen includes non-immigrant visa holders as well as green-card holders.

Firstly, it must be understood that being convicted is defined differently for immigration purposes than under state criminal law.
A person is considered to have been convicted if a court has adjudicated him or her guilty or entered a formal judgment of guilt against him or her. Also, a person is considered convicted for immigration purposes even if the court has withheld adjudication on the basis that (1) the person was found guilty or entered a guilty plea or nolo contendere and (2) the judge ordered some form of restraint or punishment on the person’s liberty.  
Secondly, convictions for minor offenses or misdemeanors, or a sentence to only probation, or court supervision, or for that matter very old convictions, can have an impact on your immigration status. The different outcomes vary from:
  1. Having your application for lawful permanent residence or naturalization denied;
  2. Being placed in deportation proceedings;
  3. Being put in detention while removing proceedings are ongoing;
  4. Deportation to your home country;
  5. Being barred from returning to the United States for certain number of years, or permanently.
Under federal immigration law, crimes of moral turpitude are crimes that shock the public conscious or involve fraud as an element. If a non U.S. citizen is convicted of a crime of moral turpitude s/he may be deported. Crimes of moral turpitude include theft, transporting or receiving stolen goods, embezzlement, fraud, adultery, assault, bigamy, kidnapping, rape, murder, etc, and even charges that may appear seemingly minor such as shop lifting, can trigger deportation proceedings.

If you would like to like to see a particular topic/issue covered in future issues please send me an email at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW e-Sandesh” as the subject.

Hanishi  T. Ali is an immigration and international business attorney at Mithras Law Group, a Westborough based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or atwww.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/ on Twitter at: http://twitter.com/immigrationinfo

Article originally published on ISWOnline

 
Thinking of applying for a green card for your parents ... PDF Print E-mail

 

or other immediate relatives – now is a great time!
Have you been thinking of applying for a green card for your parents or other immediate relatives who are living abroad and that you would like to bring to the U.S.? If so, now is a great time to consider filing a petition for your immediate relatives, as projected times to complete processing are at an all time low. This article discusses the basics of benefits, eligibility criteria, and process of applying for a green card for an immediate relative, but it cannot  be considered legal advice or replace the value of an individual consult with an immigration attorney who is able conduct a complete analysis based on  individual circumstances.
Immediate Relatives:
Immediate relatives are the most favored category of family members and are not subject to numerical limits, which in essence means that they are immediately eligible to apply for a visa. This also means that immediate relatives are not subject to the visa allocation system as other family based green card preference categories. Immediate relatives include:
Parents of U.S. Citizens who are over 21 years old,
Unmarried children (under 21 years old) of U.S. Citizens, and
Spouses of U.S. Citizens.
Benefits: Benefits of a legal permanent resident or a green card are several:
Ability to enter the United States without requiring a visa ;
Ability to take up gainful employment upon arriving into the United States without requiring a sponsor or a pre-arrange an approved job offer.
Ability to apply for a U.S. Citizenship eventually
Eligibility Criteria:
In order to be able sponsor an immediate relative you must:
Be a U.S. citizen and provide documentation such as a naturalization certificate and/or a U.S. passport to show your status
Meet an income threshold and support the relative you are sponsoring at 125% above the mandated poverty line.
Process :
1.    It must be shown that the immediate relative being sponsored is eligible for immigration and that a qualifying family relationship exists and that the sponsor is a U.S. citizen or a permanent resident. It must also be shown that the immediate relative is admissible to the United States and not deportable.
2.    In most family sponsored immigrant visa cases, the U.S. citizen or permanent resident must file an immigrant visa petition on Form I-130 (Petition for Alien Relative);
3.    Concurrent filing of the immigrant visa petition and the application for permanent residence is allowed in certain family sponsored cases, and this is called filing for an adjustment of status application, filed on Form I-485. The biggest advantage of adjusting status is the ability of the immediate relative to get the permanent status i.e. green card without having to leave the United States. To take advantage of the adjustment of status process, the immediate relative of the U.S. citizen must not only be in the U.S. but must also have proof of  lawful entry in to the United States. However, the U.S. citizen sponsor must be aware of the legal concept of non-immigrant intent and that when an immediate relative entered into the United States with a visitor’s visa s/he demonstrated an intent to return to her/his home country and that applying for a lawful permanent resident status could be perceived to be contrary to the intent represented and therefore could be considered a violation of her or his visa terms. Therefore, in situations where an adjustment of status is sought, it is advisable to consult an immigration attorney.
As mentioned earlier, the turnaround time for a green card for an immediate relative along with concurrent filing for an adjustment of status is relatively fast at present and is taking approximately 5 months at the time of writing this article. So, if you have been thinking about applying for a green card for any of your immediate relatives -  now is a great time to take advantage!
If you would like to like to see a particular topic/issue covered in future issues please send me an email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW eSandesh” as the subject.
Hanishi  T. Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/

or other immediate relatives – now is a great time!Have you been thinking of applying for a green card for your parents or other immediate relatives who are living abroad and that you would like to bring to the U.S.? If so, now is a great time to consider filing a petition for your immediate relatives, as projected times to complete processing are at an all time low. This article discusses the basics of benefits, eligibility criteria, and process of applying for a green card for an immediate relative, but it cannot  be considered legal advice or replace the value of an individual consult with an immigration attorney who is able conduct a complete analysis based on  individual circumstances.

Immediate Relatives:

Immediate relatives are the most favored category of family members and are not subject to numerical limits, which in essence means that they are immediately eligible to apply for a visa. This also means that immediate relatives are not subject to the visa allocation system as other family based green card preference categories. Immediate relatives include:
  • Parents of U.S. Citizens who are over 21 years old,
  • Unmarried children (under 21 years old) of U.S. Citizens, and
  • Spouses of U.S. Citizens.
Benefits: Benefits of a legal permanent resident or a green card are several:
  • Ability to enter the United States without requiring a visa ;
  • Ability to take up gainful employment upon arriving into the United States without requiring a sponsor or a pre-arrange an approved job offer.
  • Ability to apply for a U.S. Citizenship eventually
Eligibility Criteria:
  • In order to be able sponsor an immediate relative you must:
  • Be a U.S. citizen and provide documentation such as a naturalization certificate and/or a U.S. passport to show your status
  • Meet an income threshold and support the relative you are sponsoring at 125% above the mandated poverty line.
Process :
  1. It must be shown that the immediate relative being sponsored is eligible for immigration and that a qualifying family relationship exists and that the sponsor is a U.S. citizen or a permanent resident. It must also be shown that the immediate relative is admissible to the United States and not deportable.
  2. In most family sponsored immigrant visa cases, the U.S. citizen or permanent resident must file an immigrant visa petition on Form I-130 (Petition for Alien Relative);
  3. Concurrent filing of the immigrant visa petition and the application for permanent residence is allowed in certain family sponsored cases, and this is called filing for an adjustment of status application, filed on Form I-485. The biggest advantage of adjusting status is the ability of the immediate relative to get the permanent status i.e. green card without having to leave the United States. To take advantage of the adjustment of status process, the immediate relative of the U.S. citizen must not only be in the U.S. but must also have proof of  lawful entry in to the United States. However, the U.S. citizen sponsor must be aware of the legal concept of non-immigrant intent and that when an immediate relative entered into the United States with a visitor’s visa s/he demonstrated an intent to return to her/his home country and that applying for a lawful permanent resident status could be perceived to be contrary to the intent represented and therefore could be considered a violation of her or his visa terms. Therefore, in situations where an adjustment of status is sought, it is advisable to consult an immigration attorney.

As mentioned earlier, the turnaround time for a green card for an immediate relative along with concurrent filing for an adjustment of status is relatively fast at present and is taking approximately 5 months at the time of writing this article. So, if you have been thinking about applying for a green card for any of your immediate relatives -  now is a great time to take advantage!

If you would like to like to see a particular topic/issue covered in future issues please send me an email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW eSandesh” as the subject.

Hanishi  T. Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/

Article was originally published at ISWOnline

 

 
Worried About Being Laid Off – Know your Visa Options! PDF Print E-mail

The current economy is giving sleepless nights to many.  More precariously placed are the H-1 or L1 employees for whom an involuntary situation, like a layoff, may mean their world turning topsy turvy all of a sudden.
I have received several calls from concerned clients who are laid off or afraid of being laid off and wanting to explore their different options.  This article explores the different options H-1 and L-1 employees have to preserve their legal immigration status and continue staying in the United States legally, but this article should not be construed as legal advice and cannot replace the value of an individual consult with an experienced immigration attorney who is able conduct a complete analysis based on an individual’s circumstances.

A layoff or “benching” is a period of non-productive status for which an employer is responsible. In general, a H-1 or L-1 employee who is laid off is considered immediately out of status and there is NO grace period, not even a single day. However, in certain limited circumstances, such as where an employee continues to be paid a salary, an employee who is laid off may be considered to be maintaining status with the same employer.

Termination on the other hand, differs from lay-off, and means a clean break in the employer-employee status, thereby resulting in immediate loss of a H-1 or L-1 visa status.

Being out of status does not by itself immediately mean unlawful presence or impose drastic penalties, but being out of status for 180 days or more bars you from entering USA for 3 years and an unlawful presence of one year raises that bar to 10 years.   Instances of unlawful presence include expiration of your I-94 or revocation of your H-1 status by your employer.

Options to consider if you intend to maintain your status in the US:

1. Derivative Visa (Spouse Visa):

If you have a spouse on a valid non-immigrant visa, such as a H-1, L-1, F-1 visa, you can apply for the relevant dependant visa. Although, you may not be able to work on a dependant visa, it will give you the opportunity to look for another job while continuing to maintaining your legal status in the US.

2. Apply for a B-1/B-2 visa (Business/Visitors visa):

This is a catch all visa status for those wanting to stay in the US. You can apply for a 6 month change of status to a B1/B-2 visa so that you are either able to find another job or then wind up your affairs in the US, if intending to return to your home country. It should be noted that you are not authorized to work on a B1/B-2 visa and that to apply for a B1/B-2 visa you will have to show that you have the means to support yourself.

Therefore, even during these trying and difficult times, it is of essence that you keep your immigration status legal and file a change of status right away, if necessary, so as not to be adversely impacted in your future immigration applications.

Further, most recent processing times released by the United States Citizenship and Immigration Services (USCIS) (on July 16, 2009) indicate that an application for Change of Status is taking approximately 2.5 months to process by the Vermont Service Center, which means you have at least 2.5 months to look for another job, and possibly more (if you change of status is approved).

Once again, I cannot stress enough that maintaining a legal immigration status is crucial and should not be neglected.   

If you would like to like to see a particular topic/issue covered in future issues please send me an email at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW e-Sandesh” as the subject.

Hanishi  T. Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/

Follow us on Twitter at: http://twitter.com/immigrationinfo

This article was originally published at ISWOnline

 
To Naturalize or Not to Naturalize? – Part 2 PDF Print E-mail

This month’s article discusses the requirements for naturalization in more depth, in particular, the two primary residence requirements which can be very complicated depending on your individual situation, and involve analysis of whether you have abandoned your residence, and whether you are eligible for citizenship, and what, if any, steps can be taken to reduce any negative impact of time spent abroad.

Residence requirements:

Residence requirements can be confusing and applicants must give careful attention to satisfying these requirements when applying for naturalization.  In general, in order to apply for naturalization, an applicant will have be a Legal Permanent Resident (LPR) for at least 5 years. The period is reduced to 3 years, if your spouse has been a U.S. Citizen for the last three years and you have lived with your spouse during that time. An applicant can speed up the whole process by filing their application for naturalization 90 days prior to the five-year or three-year mark.

Below, is a summary of the residence requirements, but it cannot replace the value of an individual consultation with an experienced attorney who is able conduct a complete analysis based on an applicant’s individual circumstances.

1. Continuous Residence:

The applicant must reside in the United States as a LPR for five years and must have been under the jurisdiction of the USCIS district or state where he or she files the petition for at least 3 months. A continuity of residence must be maintained and an evaluation of continuity revolves around the amount of time an applicant has spent on each trip outside the United States.  Typically trips of less than six months outside the United States will not lead to a break in continuity of residence, but any departures lasting more than a year will automatically result in a break of continuity of residence, for naturalization purposes. Equally, important to note is that a failure to file federal income taxes because an applicant believed him/herself to be a non-resident of the United States leads to the presumption that continuous residence has not been established.  Extended absences from the United States caused by unforeseen circumstances such as an illness or natural disaster, are exceptions to the rule and will not lead to finding of abandonment of residence.  Some of the other exceptions to rule in establishing continuous residence are: U.S. armed forces personnel sent abroad on military orders, employees of the U.S. Government, and employees of certain public international organizations.

2. Physical Presence: This is a confusing area of law and the physical presence requirement is distinct and in addition to the continuous residence requirement discussed above. The physical presence residence requirement mandates an applicant to have been physically present in the United States for at least half of the requisite period of lawful permanent residence necessary to qualify for naturalization. Therefore, spouses of a U.S. Citizen must demonstrate that they have been physically present in the United States for at least 18 months (i.e. half of the three year period). All other applicants must demonstrate at least 30 months physical presence in the United States (i.e. half of the five year period). Thus, an applicant will have to calculate the exact time spent outside the United States by reviewing his/her passport and determining exit and entry dates stamped on the passport. If the total number of days required for physical presence has not yet accrued, it is suggested that an applicant wait long enough to meet the eligibility requirement before applying.

If you would like to like to see a particular topic/issue covered in future issues please send me an email at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW e-Sandesh” as the subject.

Hanishi  T. Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/

This article was originally published on ISWOnline

 
To Naturalize or Not to Naturalize? PDF Print E-mail

This article provides basic information about the Naturalization process. Whether to naturalize or not is an intensely personal one with many important considerations. For many naturalization is an emotional decision --- for some the summit of a successful immigration process and for some the end of the last formal bond with their country of origin.  There are also many practical considerations.  Naturalization may limit ability to own property in their home land and yet others may risk deportation from the United States as result of a naturalization application. The decision, therefore, to acquire naturalization by choice requires careful analysis and consideration and you may want to discuss naturalization with an experienced attorney who can help you decide if naturalization is right for you, and, if necessary, successfully help you through the process.

What is Naturalization?

Naturalization is a process which a lawful permanent resident (a “green card holder”) in the United States is granted US Citizenship and this process culminates into adopting a new homeland and renunciation of your original citizenship.

Who can naturalize?

A person who has become a lawful permanent resident (a “green card” holder) in the United States, and is over 18 years of age, seeking to become a United States citizen can naturalize.  The process is started by filing form N-400.

Whether to Naturalize?

First, assess your own circumstances, and consider whether becoming a US Citizen makes sense and whether it will provide you advantages.  Common privileges include visa-free travel to many countries, including Canada, minor children deriving US Citizenship through you if you naturalize, being able to vote for government officials, right to sit on the jury, rights to sponsor relatives for permanent residence, the ability to apply for federal jobs, and the entitlement to full protection of the US laws. The potential disadvantages are loss of other citizenship(s), and restrictions regarding ownership of property in one’s home country,

Second, research your home country’s citizenship laws to find out whether dual citizenship is allowed or whether it will cause you to lose your current nationality. For instance, India does not allow dual citizenship and you will have to have your Indian passport cancelled after you acquire US citizenship.  You may, however, choose to acquire the  Overseas Citizenship of India (OCI) card or the Persons of Indian Origin (PIO) card that allows certain privileges, including visa-free travel to India, and exemption from registration with local police authority, to name a few.

Basic Requirements for Naturalization:

a. Residence requirement:

In order to apply for naturalization, you normally must have resided in the United States as a legal permanent resident for five year s and have been under the jurisdiction of the USCIS director or state where you file the petition for at least 3 months.  You can apply within 3 years for naturalization if your spouse has been a United States citizen for the last three years, and you lived with your spouse during that time.   Naturalization applications can be sent in up to 90 days before the three or five year mark is reached.  The two primary residence requirements can be very complicated depending on evaluation of your residence in the naturalization context.

b. Good moral character:

To qualify for naturalization, all applicants must demonstrate their good moral character during the three or five year period of residence required for your application. Some of the bars to good moral character, include, criminal convictions, trafficking in controlled substances, false testimony to USCIS, failure to pay child support, failure to pay income tax, fraudulent use of public benefits, etc.

c. Speaking, Reading and Writing English:

Applicants must speak, read, and write English.  Typically during naturalization interviews, an applicant is required to understand the questions asked by USCIS examiner and converse with the examiner, as well as, be able to write out a sentence and read a paragraph.  There are certain exceptions for applicants over fifty years of age or for those who cannot comply due to a physical, developmental, or mental disability.

d. US History and Government Test:

All applicants must demonstrate knowledge of the fundamentals of United States  history and government. The recently revised test places an emphasis on the fundamental concepts of American democracy and the rights and responsibilities of citizenship. For a list of 100 test questions see: http://tinyurl.com/57sarh. If an applicant does not pass at the initial interview, the officer will schedule a second interview within 90 days.

If you would like to like to see a particular topic/issue covered in future issues please send me an email at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it with “ISW E-Sandesh” as the subject.

Hanishi Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/

This article was originally published at ISWOnline

 
It May Not be Too Late to File for an H-1B PDF Print E-mail

April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for employers to hire foreign workers in “specialty occupations”, for Fiscal Year 2010, which starts Oct. 1.

USCIS in its most recent update of April 20, 2009, confirmed that the H-1B Cap for FY 2010 has not been reached yet with fewer than predicted H-1B petitions filed this year by employers.

 Although the economic downturn was forecasted to weaken the demand for H-1B employees, most immigration attorneys, myself included, are surprised that over three weeks into the new H-1B season and USCIS is still accepting H-1B petitions and the cap of 65,000 visas has not been met.

This is the first year in many years that the H-1B cap has not been reached within days of the April 1st date. Two years ago, USCIS received more than 130,000 petitions in two days before the agency stopped accepting them. Last year, USCIS stopped accepting petitions within a week

As of the date of writing this article, the USCIS has announced that it had received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap and 20,000 petitions towards the 20,000 advanced-degree exemption cap. The USCIS, however, has announced that it will continue to accept advanced degree petitions since not all petitions received are approvable.

USCIS says it will continue to monitor the number of H-1B petitions received and will issue a notice when it reaches the 65,000 regular cap and the 20,000 advanced-degree exemption cap.

If and when USCIS hits the H-1B cap, petitions received on that final receipt date could be subject to a computerized random selection. If for instance USCIS receives 20 petitions, but can accept only 10 to reach the cap, those 10 will be randomly selected.

This scenario presents a unique opportunity for employers who chose not to file H-1B petitions earlier for otherwise eligible workers due to the potential non-selection of an H-1B petition in the anticipated lottery. It is not too late to file for an H-1B petition, as there is availability as of the date of writing the article, under the regular cap, as well as a window of opportunity under the U.S. master's cap.

Hanishi Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/

Originally published at ISWOnline.org

 
Immigration Update on Recent Changes Affecting Non-US Citizens PDF Print E-mail
The economic downturn has undoubtedly caused tightening up of immigration policies by the Department of Homeland Security (DHS) and a crackdown on illegal immigration. This article discusses two of the major changes that have come into effect in 2009 with respect to non-US citizens entering or departing from the United States.
The first major change is the expansion of the United States Visitor and Immigrant Status Indicator Technology (US-Visit) Program, which can require foreign citizens to provide biometrics, which typically include, finger scans, photographs, or other such biometric identifiers upon arrival in, or departure from, the United States at air or sea ports of entry.
The new rule that came into effect in January this year expands the categories of non-U.S. citizens required to provide biometrics to nearly all foreign citizens, including:
US lawful permanent residents (LPRs) --- popularly known as “green-card" holders;
Foreign Citizens seeking admission on immigrant visas, (this includes all family based immigration and EB-1 to EB-5 categories)
Refugees and Asylees;
Foreign Citizens paroled into the United States;
Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility.
The expansion of the US-Visit program to include lawful permanent residents is shocking as they not only go through an extensive background check to become permanent residents including a criminal background check using the applicant's fingerprints, but United States Citizenship and Immigration Services (USCIS) conducts an extensive investigation prior to granting adjustment of status to that of an LPR, and the US Department of State, as well, undertakes significant investigation of a foreign citizen applying for an immigrant visa.
This means that if you are a lawful permanent resident you could be asked to provide finger scans, photographs, or other biometric identifiers upon arrival in, or departure from, the United States at air or sea ports of entry.  If you are entering through land ports of entry, such as driving across the border from Canada, you can be required to provide fingerprints only if you are referred to a secondary inspection.
Another major change in 2009 concerns international visitors from Visa Waiver Program (VWP) countries, such as United Kingdom, Australia, Singapore, etc., who plan to travel to the U.S. for temporary business or pleasure for 90 days or less.  International visitors from VWP countries are now required to pre-register online at Electronic System for Travel Authorization (ESTA) and to obtain an online travel authorization or a “pre-clearance” no later than 72 hours before departure and travel to the United States.
ESTA requires the same information as the I-94W form that VWP visitors fill out en route to the US.  Typically, the traveler must provide biographical data including name, birth date, and passport information, as well as answers to questions regarding eligibility to travel under the VWP.
The expansion of the US-Visit program and introduction of ESTA, has caused anxiety, confusion, and travel delay among foreign citizens and international visitors, alike. It is, therefore, recommended that foreign citizens should leave ample extra time at departure for possible biometrics particularly during busy travel times and/or during the holiday season.
Hanishi Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/
The economic downturn has undoubtedly caused tightening up of immigration policies by the Department of Homeland Security (DHS) and a crackdown on illegal immigration. This article discusses two of the major changes that have come into effect in 2009 with respect to non-US citizens entering or departing from the United States.
The first major change is the expansion of the United States Visitor and Immigrant Status Indicator Technology (US-Visit) Program, which can require foreign citizens to provide biometrics, which typically include, finger scans, photographs, or other such biometric identifiers upon arrival in, or departure from, the United States at air or sea ports of entry.

The new rule that came into effect in January this year expands the categories of non-U.S. citizens required to provide biometrics to nearly all foreign citizens, including:
  • US lawful permanent residents (LPRs) --- popularly known as “green-card" holders;
  • Foreign Citizens seeking admission on immigrant visas, (this includes all family based immigration and EB-1 to EB-5 categories)
  • Refugees and Asylees;
  • Foreign Citizens paroled into the United States;
  • Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility.

The expansion of the US-Visit program to include lawful permanent residents is shocking as they not only go through an extensive background check to become permanent residents including a criminal background check using the applicant's fingerprints, but United States Citizenship and Immigration Services (USCIS) conducts an extensive investigation prior to granting adjustment of status to that of an LPR, and the US Department of State, as well, undertakes significant investigation of a foreign citizen applying for an immigrant visa.

This means that if you are a lawful permanent resident you could be asked to provide finger scans, photographs, or other biometric identifiers upon arrival in, or departure from, the United States at air or sea ports of entry.  If you are entering through land ports of entry, such as driving across the border from Canada, you can be required to provide fingerprints only if you are referred to a secondary inspection.

Another major change in 2009 concerns international visitors from Visa Waiver Program (VWP) countries, such as United Kingdom, Australia, Singapore, etc., who plan to travel to the U.S. for temporary business or pleasure for 90 days or less.  International visitors from VWP countries are now required to pre-register online at Electronic System for Travel Authorization (ESTA) and to obtain an online travel authorization or a “pre-clearance” no later than 72 hours before departure and travel to the United States.

ESTA requires the same information as the I-94W form that VWP visitors fill out en route to the US.  Typically, the traveler must provide biographical data including name, birth date, and passport information, as well as answers to questions regarding eligibility to travel under the VWP.
The expansion of the US-Visit program and introduction of ESTA, has caused anxiety, confusion, and travel delay among foreign citizens and international visitors, alike. It is, therefore, recommended that foreign citizens should leave ample extra time at departure for possible biometrics particularly during busy travel times and/or during the holiday season.

Hanishi Ali is an immigration attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.  Firm Blog at: http://immigrationinfo.wordpress.com/; 

Article was originally published at ISWonline