US IMMIGRATION LAW BLOG

Are there any Options for International Businesspersons and Investors to enter the United States to conduct a business on a temporary or permanent basis?

Harsharn Makkar — Thu, 29 May 2008 03:08:42 +0000

Although International Businesses and Investor can use the five employment based categories, it may be beneficial to entertain a category that is available to investors who create employment for U.S. workers. To qualify as an Investor, one must invest $1,000,000 in a new business and create employment for at least ten U.S. workers or $500,000 in a rural areas or areas of high unemployment. The advantages of qualifying under this category are that the investor does not have to obtain a labor certification, which means no approval required from Department of Labor. In addition, the investor can obtain permanent residency if the investor can prove that it created a viable business that sustained beyond the two-year period. The disadvantages are that it requires investment. In addition to requiring investment funds initially, it requires proof of sustainability of the business in addition to creating employment for U.S. workers. To learn more about work visa based on investment, contact Hersh Makkar at Makkar Law Firm, LLC.

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What is a priority date and why does it matter?

Harsharn Makkar — Thu, 03 Apr 2008 03:58:20 +0000

A priority date is a person’s place in line for obtaining a permanent residency through family or employment category. Thus, it is important to those seeking permanent residency to obtain a priority date. Under the family based category, the date when a United States relative files a petition for the alien relative (form I-130), that date becomes the priority date. Under the employment based categories, the date when an employer either files an application for labor certification or if no labor certification is required, when the employer files an application for the alien worker (form I-140), that date becomes the priority date.

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When does my presence in the United States starts to count as unlawful presence once the judge grants voluntary departure?

Harsharn Makkar — Sun, 23 Mar 2008 21:37:35 +0000

Once the judge issues the voluntary departure order, you have 90 days from the date of the order to depart the United States. The time incurred between the voluntary departure date and the date you choose to depart does not count towards your unlawful presence. It is advisable though to depart before that period runs out because if you do not leave within 90 days, you will accrue unlawful presence and that unlawful presence will bar you from returning to the United States in the future.

Please note if you want to remain in the United States because you are seeking review from the BIA of the removal order, voluntary departure period will not run while the BIA appeal is pending. However, that is not the case if you appeal to the court of appeals. As you know with anything else, these rules may change. Thus, it is imperative to consult an immigration attorney before forming a decision.

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What is E-Verify?

Harsharn Makkar — Wed, 19 Mar 2008 15:34:15 +0000

E-Verify (Employment Eligibility Verification Program) is an Internet-based system that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The system is designed to confirm employment eligibility with Social Security Administration and check for work visas with Department of Homeland Security. The participation in this program is voluntary and it is free. However, a number of states do require certain employers such as federal contractors to participate and comply with federal work authorization verification program. The program also allows employers to compare photos of new hire’s employment authorization documents (EAD) or permanent resident (Greed Card) against nearly 15 million images stored in the Department of Homeland Security (DHS) databases. In addition, USCIS has improved contact services to obtain program information and assistance. To learn more about the program visit: www.dhs.gov/E-Verify. Finally, employers can learn about the program and training in Atlanta, visit http://www.dhs.gov/xabout/gc_1177436339963.shtm

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House Bill 978 may impact your business assets/vehicles

Harsharn Makkar — Tue, 04 Mar 2008 03:47:53 +0000

The State of House of Representatives recently passed House Bill 978, which allows state authorities to seize any vehicle involved in a traffic violation or accident if it’s driven by an illegal immigrant, which includes rented and leased vehicles if the owner knew, or should have known that the driver is an illegal immigrant. If this bill becomes effective, anyone involved in an accident or even minor traffic infraction would be required to prove that the person is a United States citizen or risk loosing his/her vehicle. On the surface, this law appears to be fair since this would mean that those who break the law would be forced to reimburse the system at least in a small way. The end result, however, would require the state police to become proficient in immigration law since they would be required to seize vehicles based on immigration status. Otherwise, how would they determine if a person with expired greed card or adjustment of status does not mean that the person is here illegally? How would the police be able to determine a driver was illegal immigrant during a traffic stop? Would the inquiry be based on color or accent of the driver? Would the owner of the vehicle be required to prove that they did not know the immigration status of the driver? Would this bill work like the property seizure laws in drug offense cases? If this HB 978 becomes effective, business owners might be required to provide sworn affidavits to prove that they did not know the immigration status of the driver. They may even be required to testify in a hearing or risk loosing their vehicle.

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Pending Anti-immigrant Bills in Georgia Legislation

Harsharn Makkar — Sun, 24 Feb 2008 23:20:01 +0000

Georgia legislators are considering several bills that are anti-immigrant, which severely impact illegal immigrants. These bills are designed either to limit their movement on our roads or limit their ability to function here. Consider the following bills, which are designed to limit immigrants’ movement here. One of those bills is House Bill (HB) 978, which allows the police to seize cars driven by illegal immigrants who violate traffic laws when involved in an accident regardless of who owns the vehicle. Another House Bill 971 makes it a misdemeanor for an illegal immigrant to drive in Georgia with an out-of-state license and a Senate Bill (SB) 25 makes it a felony if an applicant or his/her agent was to lie about the applicant’s citizenship to renew a driver’s license or tag. Lastly, Senate Bill (SB) 350 makes it a felony to drive without a Georgia license on the fourth conviction within 5 years.

Similarly, there are several other bills pending that limit illegal immigrant’s ability to function here by doing away with birthright citizenship or promoting English-only policies. For example, House Bill (HB) 127 urges Congress to deny automatic citizenship to children born to illegal immigrant mothers. Another example is Senate Bill (SB) 335, which prohibits state agencies from requiring or giving preferences to those applicants with other language skills for a particular position. Lastly, House Bill (HB) 1028 allows a 2% fee on wire transfers, and allows the transfer company to keep up to 20% of that fee to cover collection and record-keeping costs.

Some of these bills have passed the Senate. Others are still pending. Many are working to stop this anti-immigrant pieces of legislation from moving forward since it not only impacts illegal immigrants but it also affects legal immigrants as well as potential immigrants.

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What is causing the processing delays at the USCIS?

Harsharn Makkar — Tue, 12 Feb 2008 02:14:04 +0000

Based on the testimony prepared for the Director of USCIS, Emilio T. Gonzalez, the cause of processing delay is the increase in naturalization filings before the filing fees increased on July 31, 2007. According to this testimony, in the summer of 2007, USCIS received in excess of three million applications. The Service claims that such an increase in filing within a couple of months is unprecedented and it represents increase of almost 350 percent compared to the previous year increase in workload. Although the general talks such as naturalization filing increase contemporaneous with the opening of the employment-based visa window does help to understand the current backlog, it does not explain the delays that have existed prior to the rate increase. In other words, the director did not provide any concrete answers as to why increase in applications and petitions alone ought to cause such delays. He admitted that the processing time for the naturalization applications has increased from seven months to eighteen months and for family-based adjustment-of-status applications from six months to twelve months.

In essence, rather than answer the questions; he outlined the steps that the USCIS has taken to remedy the situation. According to the Director, the Service has increased the manpower to process the applications. The Service is also expanding the automation process for those who already qualify such as those with expired permanent resident cards or temporary employment authorization. They are also promising to improve the background check process and centralize the intake of naturalization application before the end of 2010.

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What is the purpose of E-Verify?

Harsharn Makkar — Mon, 28 Jan 2008 00:12:13 +0000

The purpose of E-Verify is to help employers verify employment authorization documents of a newly hired employees. Once the employer collects verification documents, the participating employer can electronically submit the information to USCIS for verification. In case, the documents do not match, the program requires employers to resolve discrepancies between their employee records and those of the Social Security Administration and/or the Department of Homeland Security. This program is problematic because once the employer is notified of the discrepancy, the employer must make a decision to either terminate the employment or continue the employment and risk criminal and/or civil penalties for non-compliance. Either step is problematic for employers because an employer could be sued for wrongful termination or as mentioned above risk criminal and/or civil penalties for noncompliance.

For more information about E-Verify, visit: https://www.vis-dhs.com/EmployerRegistration

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Is there a way to avoid removal proceedings and what are the benefits of voluntary departure?

Harsharn Makkar — Thu, 03 Jan 2008 07:54:18 +0000

There are defenses to deportation or removal proceedings such as cancellation of removal or voluntary departure. However, determining whether you qualify for one of these defenses depends on many factors. One of those factors is whether the non-immigrant (you) entered the country with or without inspection (inspection does not mean with or without a visa) or if you violated one of the terms. Another factor is whether a removal of non-immigrant would cause an extreme hardship to a United States citizen (USC) spouse or a child.

Because the first two factors are complicated to explain this post, we will only focus on the third factor, which to cancellation of removal based on extreme hardship to a USC. To qualify for a defense based on an extreme hardship, a non-immigrant must be married to a United States citizen and/or have children(s) or parent(s) who are United States citizens. Of course, there are various other factors that a non-immigrant must show in order to qualify for any of the defenses mentioned above, which an attorney must evaluate before forming an opinion whether you qualify for one of these defenses.

A point to remember is that even if a cancellation of removal is not available as a defense, a voluntary departure is a desirable alternative than deportation because it helps a non-immigrant preserve his/her right to return to the United States in the near future. However, not everyone qualifies for a voluntary departure. More importantly, overstaying the voluntary departure period could subject the non-immigrant to severe penalties. Thus, it is imperative that a non-immigrant hire an attorney for deportation advice before his/her court date to determine a type of relief available.

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