Immigration Law

Immigration Myth #6: Cost

denawurman — Wed, 25 Jan 2012 02:49:46 +0000

Clients want to know how much an immigration case will cost. When a client has an entry document and no appearance in court is required, it may be easier to estimate. When there is litigation, it is more difficult. $20,000 to $60,000 for an initial green card application just seems really high to me. That is my personal opinion. Most attorneys will offer a formal written agreement of the cost for a case. In California, if the fee is over $1,000, the attorney must put it in writing.

H1B, OPT, STEM and Cap-Gap

denawurman — Mon, 07 Nov 2011 18:01:18 +0000

A U.S. employer may temporarily hire foreign workers in specialty occupations on the H-1B visa. Each year, 65,000 H visas are awarded based on a lottery. Applicants must have an employer sponsor, meet the screening criteria and be selected before the visa lottery is filled. Current law limits to the number of visas (“the cap“.) It exempts up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities. An employer is frequently introduced to the H visa applicant during a student’s Optional Practical Training (OPT) period. OPT is a twelve month employment period allowing a foreign student to work in an area related to their studies. A 17 month STEM (Science, Technology, Engineering and Math) extension allows a select group of OPT students two application cycles to apply for the H visa.

Every year, the number of applicants exceeds the number of visas available. The first business day of April opens the H1-B visa application window. This year, USCIS (the U.S. Immigration Service) began accepting H-1B petitions subject to the FY 2012 cap on April 1, 2011 and as of October 21, received 46,200 cap-eligible petitions or more than 70% of the cap. If the cap is reached, those students with STEM extensions will be eligible to apply in April 2012 for their H visa. For students who do not fit STEM requirements, there is “cap-gap” relief. Cap-gap relief allows students to continue to extend their stay as a foreign student as long as an H-1B petition is filed before the 60-day grace period at the end of F status. This relief would apply if the student’s F status expires before the October 1, 2011 start date for the H visa. Are you an employer with a question about H1B, OPT, STEM or CAP-GAP? Click the “contact” link and send your question to a licensed immigration attorney.

October 11 @ 8am Albuquerque Hispano Chamber of Commerce

denawurman — Mon, 10 Oct 2011 01:18:44 +0000

Legal Update on Immigration Topics

October 11, 2011

8:00 am – 9:30 am

Find the answer to that burning question you’ve always wanted to ask at the upcoming series in October at the Hispano Chamber of Commerce, presented by an attorney specializing in business immigration. There will be a question and answer period after the presentation and an option to call in your questions.

When: October 11, 2011 from 8 to 9:30am

Where: 1309 4^th Street, Albuquerque (Lockheed Conference Room)

Topics on October 11 will include: Visas

Why you can’t work on a tourist visa (B1/B2) in the U.S.
What is an employment visa?
Examples of employment visas and their requirements

Attorney Dena Wurman helps businesses navigate the confusing and complicated federal immigration system. This includes counseling businesses on immigration employment matters. She earned a Masters Degree in Public Administration (MPA), a Juris Doctorate degree (JD) and is a member of the State Bar of New Mexico. For more information, visit www.denawurman.com and send in a question in on the website contact page.

What is a Visa?

denawurman — Sun, 09 Oct 2011 23:01:49 +0000

If you’re a citizen of a foreign country, in most cases you’ll need a visa to enter the United States. A visa doesn’t actually permit you to enter the U.S. A visa simply indicates that your application has been reviewed by a U.S. consular officer at an American embassy or consulate, and that the officer has determined you’re eligible to enter, for a specific purpose.Consular affairs are the responsibility of the U.S. Department of State.

A visa allows you to travel to the United States as far as the port of entry (airport or land border crossing.) The immigration officer you meet when you get off the plane is the one who allows you to enter the country. Only the immigration officer has that authority. He or she also decides how long you can stay for any particular visit. Immigration matters are the responsibility of the U.S. Department of Homeland Security.

There are two categories of U.S. visas: immigrant and nonimmigrant. Immigrant visas are for people who intend to live permanently in the U.S. Nonimmigrant visas are for people with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis – for tourism, medical treatment, business, temporary work or study.

The Legal Workforce Act

denawurman — Wed, 28 Sep 2011 23:20:43 +0000

If passed, the Legal Workforce Act would create a new employment Eligibility Verification System (EEVS) in our country. The plan is controversial. That said, many employers would welcome an effective method to screen new employees without the risk of triggering a law suit based on national origin. The new bill would change the current process for verifying employment. It would do away with the current I-9 form. Here are some highlights of the proposed law. It would create a felony crime for misuse of a social security number. It would scale back the list of approved work documents. The proposed EEVS will be patterned on the current E-Verify system. Finally, the fines outlined in the current regulations would be substantially increased. The bill has not become law and there is a chance it may not be approved by the Senate. There is some debate on its potential effectiveness.

Even if the bill doesn’t pass, there is a pressing need to have an effective way to determine whether a Social Security card is in fact authentic. The inspector general’s office is also pushing for legislation that would limit the ability of local governments and companies to access and display Social Security Numbers. Schools and social services agencies often widely circulate sensitive personal data for kids in foster care, leaving foster children especially vulnerable to identity theft. In one new form of identity fraud, corrupt vendors use dormant Social Security numbers, particularly those assigned to children.

Why can’t I just ask for the drivers license and Social Security card?

denawurman — Mon, 26 Sep 2011 20:23:40 +0000

The Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. The lawsuit highlights the need to train human resources personnel in the minutiae of documentation to satisfy the requirements of the employment verification process without crossing the line to unfair discriminatory practices against employees born in other countries or with foreign sounding names.
The stakes have increased with several states recently implementing severe penalties for illegal hiring. It is not unusual for employers to become more careful, and request additional documentation from employees. However, the Immigration and Nationality Act provides penalties for unfair discrimination, a requirement now apparent to Farmland Foods. An employer is prohibited from asking for a specific work document. Employers must accept documents that reasonably look genuine while at the same time they are required to reject clearly fraudulent documents.

Seminar Tomorrow in Albuquerque, NM

denawurman — Mon, 26 Sep 2011 20:08:44 +0000

WORKSHOPS/SEMINARS

LEGAL UPDATE ON IMMIGRATION TOPICS

September 27, 2011

Albuquerque Hispano Chamber of Commerce

1309 4th Street SW

Albuquerque, NM 87102

8:00 – 9:30 am

Find the answer to that burning question you’ve always wanted to ask at the upcoming series in September and October at the Albuquerque Hispano Chamber of Commerce, presented by an attorney specializing in business immigration. There will be a question and answer period after the presentation and an option to call in your questions.

Topics will include:

Why E-Verify?

Is E-Verify is right for my business and what do I risk by enrolling?

What is a Deemed Export?

denawurman — Tue, 13 Sep 2011 16:17:28 +0000

The USCIS now requires employees filing Form I-129—part of the visa petition used for several categories of nonimmigrant workers—to certify their company’s compliance with the U.S. Department of Commerce and the U.S. Department of State’s “deemed export” regulations. “Deemed export” rules interpret the release of controlled technology to a foreign national within the U.S. as equivalent to the export of technical data. Employers must certify whether or not the technology, to which foreign national workers have access, has sensitive military, trade or national security applications. The requirement of an export control license may be prompted not only by sensitive technology, but by its export destination as determined by the residency status of the participating employee. Currently, embargoed nations and those accused of harboring terrorists, such as Cuba, Iran, North Korea, Sudan, and Syria, carry the highest level of restriction. Exempted from export controls are those technologies readily available to the public, or developed via fundamental research. While only a small percentage of companies filing Form I-129 handle controlled technology, all are required to sign “part six,” which confirms compliance with the regulations. Employers should thus be diligent in scrutinizing their technologies with respect to the control lists, as assumptions carry the risk of a false I-129 certification.

Recent Decision: No Back Pay for Undocumented Workers

denawurman — Mon, 12 Sep 2011 19:11:20 +0000

In August 2011 the highest government agency overseeing labor relations in the US ruled that undocumented workers were not entitled to back pay, even though their employer may have known they were working without legal documents. In a unanimous three-member decision, the National Labor Relations Board (NRLB) panel denied back pay to seven illegal immigrants who worked for the Mezonos Maven Bakery, Inc. (“Mezonos”). Mezonos had hired these workers without satisfying its Form I-9 obligations under the Immigration Reform and Control Act of 1986 (“IRCA”). IRCA requires employers to verify employment documents within three days of hire. The employees were then fired after complaining that their treatment by a supervisor violated the law. In November 2006, an Administrative Law Judge who heard the case sided with the employees.

This August 2011 decision changed that. Admitting that their decision was not optimal, the Board followed the Supreme Court’s decision in Hoffman Plastics. Hoffman is an important case that employers rely on to defend against an award of back pay where employees are undocumented. In some cases an employer may not know whether an employee is working legally, particularly when forged documents are used. In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court of the United States affirmed a decision that refused to award back pay to undocumented workers for violations of the National Labor Relations Act (“NLRA”) The employers in that case had satisfied their Form I-9 obligations, but the workers had misrepresented their status to secure employment. The effect of this new case is to broaden employer protection from awarding back pay to undocumented workers.

What is Labor Certification?

denawurman — Tue, 05 Jul 2011 02:42:47 +0000

Many of the terms in immigration are misleading. For example, in order to change from visa to green card, the form used is called an “adjustment” form. If you want to keep a visa or stay in a non-immigrant visa category, the process is called a “change.”

In the same way, the certification of labor process conveys no legal working status to a green card candidate. A common misconception is that a Labor Certification through the Department of Labor is a work authorization document. It is not. It is the first step an employer must take to prove there are no other qualified candidates for the job they are offering. There are many other required steps that follow.

Do you have a question about your employer sponsoring you for a green card? Speak with a qualified immigration attorney. For a complimentary 15 minute consultation, call (505) 506-9434 .