by Heidi Meyers | Aug 12, 2016 | Articles
Hopefully, all are enjoying the last month of summer and not worrying too much about the advancement of the priority dates! For those of you who will be dismayed about the state of the priority dates in the State Department’s Visa Bulletin for September 2016, take heart. September 30th is the last day of the fiscal year, and new visa numbers will become available on October 1st, the first day of the government’s fiscal year. Mexico’s EB-4 and India’s EB-4 categories will probably become current again in October. However, for El Salvador, Guatemala and Honduras, it is likely that a cut-off date in 2015 will be established for EB-4 starting in October, but is likely to move forward very slowly during the next fiscal year.
The final action date for the EB-2 worldwide category remains backlogged to February 1st, 2014, more than two and a half years behind. While the State Department allows filing of EB-2 immigrant visa petitions up to the current date, so even if your priority date is behind you can initiate immigrant visa processing, USCIS does not allow this. Thus, those adjusting status in the US are still backlogged to February 1, 2014 and may not file unless their priority dates are current.
For China, EB-1, EB-2 and EB-3 are all backlogged to January 1, 2010, more than six and a half years behind. For India, EB-1 is backlogged to January 1, 2010 as well, but EB-2, EB-3 and Other Workers are backlogged to February 2005, more than 11 and a half years away. The Philippines is current for EB-1, EB-2 is at February 1, 2014, the same as the worldwide category, with more than a two and a half year wait. EB-3 and Other Workers for the Philippines are at July 1, 2010, more than six years wait.
El Salvador, Guatemala and Honduras’ employment-based categories, with the exception of EB-2 are also behind, but EB-3 and Other Workers as a practical matter are doing fine at May 1, 2016. However, the EB-4 and Religious Workers categories are at January 1, 2010, more than a six and a half year wait. The January 1, 2010 cut-off date imposed earlier this year is mostly due to high demand for Special Immigrant Juvenile visas.
by Heidi Meyers | Aug 1, 2016 | Articles
On July 29, 2016, Department of Homeland Security (DHS) published the final rule expanding the provisional unlawful presence waiver to all who are eligible for a waiver of the unlawful presence grounds of inadmissibility. Now, beneficiaries of any type of immigrant visa petition, including all the family preference categories, any I-140 whether based on a PERM labor certification or not, as well as winners of the Diversity Visa lottery, will be able to file an I-601A provisional unlawful presence waiver, as long as they have a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.
Up to now, only people who were the spouse, parent, or child of a U.S. citizen, with no other ground of inadmissibility were able to apply for provisional unlawful presence waivers. The prior rule prevented many people, including those whose close relatives were permanent residents and not U.S. citizens, and those with a criminal record or disease of public health significance, from being eligible. Now, even if you have an arrest record or some other potential ground of inadmissibility, you may apply for the provisional unlawful presence waiver. Of course, you still must prove eligibility for whatever other waiver you may need. It also eliminates the requirement that the person must not have been scheduled by Dept of State for a visa interview.
People with removal, deportation and exclusion orders will also be eligible for a waiver, as long as they already have an approved I-212, application for permission to reapply for admission into the U.S. They must first obtain a waiver of the bars to re-entry of their prior removal or deportation order. However, individuals outside the U.S. will not be eligible for the expanded provisional unlawful presence waiver.
This will benefit many people in the U.S. who have approved relative or other immigration petitions who were not eligible under the prior provisional unlawful presence waiver.
by Heidi Meyers | Jul 25, 2016 | Articles
If you have a business in the United States, and want to bring in an employee from abroad as an E-1 (treaty trader), E-2 (treaty investor), L-1A (managerial or executive transferee), L-1B (specialized knowledge), O-1 (alien of extraordinary ability) or H-1B (temporary professional), the protection of your business’s intellectual property by having trademarks, patents, copyrights or trade secrets, will help you get your E, L, O or H-1B petition approved.
First, if you have just started a new business, or you have an ongoing small business, you want to show USCIS that your business is sufficiently capitalized and has enough assets to be able to continue operating and pay your future employee an appropriate wage. If you are sponsoring an H-1B, you must prove to USCIS that your company is able to pay the prevailing wage. For other work-related visas, such as Es, Ls, or Os, the employer needs to show that it has enough income and assets to be able to pay the employee for the full period of time requested. For an E-2 (treaty investor), you have to show a substantial investment in the business, and IP can be included as part of your total investment in the business. Trademarks, patents and copyrights are assets and can be included when you are calculating the assets of your firm. For example, computer programs and databases can be copyrighted or patented, if you have your own proprietary software product. If you have a fashion design company, you can copyright your special and unique patterns and designs. Even though it may be difficult to prove the monetary value of your IP protected assets if they are new or you are just starting out, it creates the perception of value.
Second, in the case of H-1B or L-1B employees who will work at your client’s work site, and not at your own firm’s offices, you need to show that you, the petitioning employer, control your employee’s work and that your client is not directing your employee. If the employee is implementing the company’s own proprietary product, for which you have IP protection, be it copyright or patent or even if you have trademarked the name of your product, then you can show that it is your firm that is supervising your employee, because it is your firm that has knowledge of its own proprietary product, and not the client.
Third, when sponsoring an employee as an L-1B (specialized knowledge worker), the company must show that the employee has special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. While USCIS keeps repeating that it is not necessary that the sponsoring company have proprietary products of which the employee has specialized knowledge, the fact of the matter is that a company with its own proprietary products protected by patents, copyright, trade secrets and trademarks, has a much better chance of getting its L-1B petition approved than a company which either does not bother to protect its IP or else does not have any proprietary products. For example, a fashion design company may sponsor for the L-1B an important designer who has been working for the company abroad and is responsible for many of its special designs to come to the U.S. If the fashion company has copyrighted its particular designs and patterns, has design patents for its shoes, handbags and jewelry, or has certain lines which have been trademarked or have a certain trade dress, the chances of having the case approved is higher. Another example would be an engineering company, which has its own patents for particular machinery it has developed, which wants to bring one of its engineers from abroad, who is highly experienced in the patented machinery.
A similar category to the L-1B specialized knowledge worker is the E-1 or E-2 essential skills worker, where the company has to show the employee has a certain expertise and unique skills. The employer has to show that US workers do not have these particular skills and expertise. An employee who has expertise and experience in proprietary products of the employer which are protected by copyright, patents, trademarks or as trade secrets, has a much better chance of having their petition or visa application approved than does a similar application by a company which does not protect its intellectual property. E-1 includes trade in services, which may include for example, a fashion or creative company abroad, which licenses its copyrighted products, or brand of fashion and apparel in the U.S., for manufacturing, marketing and distribution.
Thus, companies wanting to bring professional or highly-skilled employees to the U.S. stand a much better chance of having their petitions approved in many situations if they have protected their intellectual property. Companies who want to protect their intellectual property should always consult with an experienced IP attorney.
by Heidi Meyers | Jul 12, 2016 | Articles
The August 2016 State Department Visa Bulletin shows that the worldwide EB-2 preference (for jobs that require at least a masters degree, or a bachelor’s degree plus five years experience) has retrogressed to February 1, 2014, a backlog of about two and a half years. However, in spite of the retrogression, applicants are still able to file their adjustment applications regardless of their priority date, although they will not be able to receive their green cards unless their priority dates are February 1, 2014 or earlier.
The worldwide EB-3 category continues to be current for filing and with only a very short backlog for receipt of the green card set at March 15, 2016.
From June to August 2016, EB-2 for India has advanced from October 1, 2004 to November 15, 2004, and EB-3 for India has advanced from September 22, 2004 to November 8, 2004. Thus, there is currently very little difference in the priority dates for EB-2 and EB-3 India. For August 2016, EB-2 and EB-3 China are both exactly the same, stuck at January 1, 2010, the same as it has been for the past two months. For the Philippines, EB-2 is at the same priority date as for the worldwide category, at February 1, 2014, but EB-3 is backlogged to May 15, 2009, a wait of more than seven years.
by Heidi Meyers | Jun 24, 2016 | Articles
On June 23, 2016, the U.S. Supreme Court issued a short order in the United States v.Texas case, affirming the judgment in the Fifth Circuit by a vote of four to four. Because the eight justices of the Supreme Court were equally split, the undocumented parents of U.S citizens and permanent residents, as well as the expanded group of people who arrived in the U.S. as children, are blocked from getting the relief of deferred action and work authorization. The Supreme Court deadlock is a terrible blow to as many as five million immigrants and to the entire nation. It is truly heartbreaking, as President Obama said. Millions of hard-working parents are unable to get work authorization or have relief from deportation. Others who came to the U.S. as youngsters are also unable to get permission to work and are subject to exploitation by unscrupulous employers. Most have lived in the U.S. for many years, and have strong ties to their communities. While the Supreme Court decision did not create any legal precedent, it has stopped President Obama’s executive action from going forward.
President Obama’s proposed program, DAPA (Deferred Action for Parents of Americans and Permanent Residents) would have spared from deportation and provided work authorization for the undocumented parents of U.S. citizens and permanent residents. Additionally, it would have expanded the group of people eligible for DACA (Deferred Action for Childhood Arrivals), who had entered the U.S. prior to reaching the age of 16. The expanded DACA would have included applicants over 31 years of age, and changed the date of entry requirement from June 15, 2007 to January 1, 2010.
The legal basis for President Obama’s executive action can be found in the the U.S. Constitution, the Immigration and Nationality Act (INA), other federal statutes, federal regulations, and Supreme Court case law.
Congress has delegated to DHS the authority to set national immigration enforcement policies and priorities, 6 U.S.C. 202(5) and to issue regulations to carry out their responsibilities, 8 USC 1103(a)(3). Congress has also made clear that DHS is to prioritize removing those who have committed serious crimes, Department of Homeland Security Appropriations Act, Pub.L.No. 114-4, 129 Stat. 39, 43 (2015). Through the DACA and DAPA programs, those with clean records and who are not an enforcement priority, could come out of the shadows, submit to background checks, pay fees, apply for work authorization and be counted. Thus, they would be working on the books and paying taxes on the income they earn. Additionally, President Obama’s proposed measures would keep families together, as one of the main purposes of the Immigration and Nationality Act (INA) is to keep families united.
Deferred action is a form of prosecutorial discretion, which is granted on a case-by-base basis. Deferred action only means that the government has agreed not to deport you, for a certain period of time. It is not permanent residency, and does not create a path to permanent residency or to citizenship. The federal government’s decision not to prosecute or enforce the immigration laws, is generally considered to be within DHS’s absolute discretion. Previously the Attorney General, and now DHS, has broad discretion to decide whether to commence removal or deportation proceedings, adjudicate cases, and execute removal orders, and individuals have no private right to challenge these decisions in court. Reno v. American Arab Anti-Discrimination Committee, et al., 119 S.Ct. 936 (1999).
The Fifth Circuit decision, which stands because of the Supreme Court’s impasse, allows individual states to block federal immigration policy. The Executive branch’s authority over immigration, as over foreign relations, and a uniform rule of naturalization, has long been considered to preempt individual state action. Of course, each individual state cannot have its own immigration policy, which is why immigration has always been considered a federal matter. See, Arizona v. U.S., 132 S.Ct. 2492 (2012).
