February 2011 Newsletter

Welcome to the February edition of Gafner Law Firm’s Monthly Immigration Newsletter.  This month’s newsletter provides firm updates, recent immigration news, legislative updates, and recent developments in immigration law.

Readers are welcome to contact Gafner Law Firm if they have questions about the newsletter, or if they would like to schedule a telephone or office consultation.  Please contact the firm by calling 646.571.8472, or through its website contact page.

Best regards,

Chris Gafner

Table of Contents

Firm News

  • Immigration Lawyer Chris Gafner Authors Article Published in Legal Briefs on Immigration Reform From 25 Of the Top Legal Minds in the Country

Family Immigration

  • USCIS To Issue Joint Advance Parole and Work Authorization Document in Family-based Immigration Petitions
  • Family-based Immigration Petitions Delayed At Texas Service Center

Employment Immigration

  • H-1B Visa Cap Reached
  • What Are Immigration Alternatives to H-1B Visa?
  • USCIS Updates its EB 1-1 and EB 1-2 Visa Guidelines

Business Immigration

  • Export Control Acknowledgment Goes Into Effect On I-129 Form

Investor Immigration

  • Indirect Job Creation With EB-5 Regional Centers

Naturalization

  • How Many People Naturalize Each Year?
  • Permanent Resident Selective Service Requirements

Legislative Outlook

  • President Obama Mentions Immigration in State of Union

Immigration In the News
Immigration Insight Blog Posts

Firm News

 

Immigration Lawyer Chris Gafner Authors Article Published
in Legal Briefs on Immigration Reform From
25 Of the Top Legal Minds in the Country
Chris Gafner has authored an article that was published as part of a book entitled: Legal Briefs on Immigration Reform From 25 Of the Top Legal Minds in the Country.  The article, Winning the International Competition For Talent: Improving America’s Ability to Attract the Best and the Brightest, suggests how the United States can improve its position as the leading destination for talented minds.

Currently, the United States attracts the best and brightest immigrants with the EB 1-A Extraordinary Abilities Visa, the EB 1-B Outstanding Professor and Researcher Visa, and the National Interest Waiver Visa.  The article suggests how the nation can increase the number of talented immigrants allowed to enter into the United States.

The article was co-authored with Professor Stephen Yale-Loehr of Cornell Law School.

Family Immigration

 

USCIS To Issue Joint Advance Parole and Work Authorization Document in Family-based Immigration Petitions

The USCIS will soon begin issuing joint advance parole and work authorization documents to applicants seeking family-based immigration petitions.  Previously, the USCIS issued separate documents for advance parole and work authorization.

Often, when an immediate relative of a U.S. citizen seeks permanent residency in the United States the applicant will concurrently file an “adjustment of status,” work authorization and advance parole application.

Advance parole authorization allows the applicant to travel outside of the United States.  A work authorization document provides evidence of a holder’s ability to work lawfully.

The change to a joint document is meant to improve the efficiency of the USCIS and to reduce its costs.

Family-based Immigration Petition Delays At Texas Service Center

The USCIS announced that it is experiencing delays at its Texas Service Center due to a transfer of family-based petitions from the California Service Center.  The delays include petitioners who have immediate relatives that are family members of U.S. citizens, including spouses, minor childern (under 21), or parents

.

The immigration agency believes that the delays will be solved by March 1st.

Employment Immigration

 

H-1B Visa Cap For Year Reached

The USCIS has announced that the annual cap for H-1B visas has been reached.  Applicants must now wait until April 1 before applying for a H-1B visa.

Each year there are only 65,000 regular H-1B visas available, and each year applicants must closely watch the number of remaining visa.  See below for alternatives a person might have now that the cap has been reached.

What Are Some Visa Alternatives To The H-1B Visa?

Potential employees who missed the H-1B visa cap for this year may still be able to obtain immigration status.  The following are possible options for employees.   Please contact an immigration attorney if you would like to learn what options may be specifically available to you.

Option 1.  Is Your Potential Employer Cap Exempt?
The H-1B visa cap only applies to certain companies and many H-1B visas are not capped.  For example, cap-exempt employers include (1) institutions of higher education, (2) nonprofit entities related or affiliated to a higher education institution, and  (3) nonprofit or government research organizations.

Option 2.  Do you qualify For the O-1 Visa?
Not all employees will qualify for the O-1 Visa.  However, if you have extraordinary abilities in your field of endeavor, you may qualify for the visa.  If you qualify, you will not need to obtain an H-1B visa.

Option 3.  Have You Worked Overseas For Your Company?
If you are coming to the United States to work for a company  (or an affiliate of that company) you may qualify for a L-1 Visa for intracompany transferees.  WIth an L-1 Visa, you do not need to obtain an H-1B visa.

Option 4. E-2 Treaty Investor or EB-5 Investor
You may qualify for a visa if you are starting your own company and you meet the general requirements for the investor visas.  The EB-5 Investor Visa requires an investment of at least $500,000.  The E-2 treaty investor visa does not require such a high investment, but also requires the investor to come from certain countries.

Option5.  Wait.
Unfortunately, the best option for many individuals may be to just wait.  The immigration agency will begin accepting H-1B visas again on April 1, 2011.  Those individuals who wait until that time to apply, will not be able to begin working until October 1, 2011.

USCIS updates its EB 1-1 and EB 1-2 Visa Guidelines

The USCIS released a new policy memorandum concerning the adjudication of EB 1-A and EB 1-B Visas.  The policy updates the USCIS’s guidelines to adjudicators concerning how to review an application’s documentation and refines how the adjudicators analyze petitions.

The EB 1-B visa (also known as the EB 1-2 visa) is for outstanding professors and researchers.  It is a slightly less enticing immigration visa for attracting the best and brightest minds to the United States.  The EB 1-A visa (also known as the EB 1-1 visa) is for noncitizens possessing extraordinary abilities in a field of endeavor that is beneficial to the United States.  It is the most enticing immigration visa the United States has to offer the best and brightest minds.

The revisions follow a federal court case in which the USCIS was determined to have distorted the EB 1-1 and EB 1-2 visa criteria.  Whether the new guidelines will alleviate the distortion is unknown.  It is hoped that they will increase the likelihood of more eligible applicants being granted a visa.

Business Immigration

 

Export Control Acknowledgment Goes Into Effect On I-129

Employers are reminded that they are now required to certify that they are in compliance with U.S. export control laws.  The certification is required on the new I-129 form that USCIS introduced last year.  Although the new form was introduced last year, USCIS delayed the requirement for export control certification until February 20, 2011.

It is possible for an employer to violate U.S. export control law by providing noncitizen workers with access to sensitive information to the United States.  The I-129 form is required to be completed when an employer seeks to hire a worker requiring a H-1B, L-1 or O-1 visa.

Investor Immigration

 

Indirect Job Creation With EB-5 Regional Centers

The EB-5 regional center program is the largest component of the EB-5 visa category, as it makes up about 90% of all EB-5 visa petitions. This disparity is at least partially due to less stringent requirements required of the EB-5 visa holder.  For example, an individual EB-5 visa petitioner must show that the investment created ten U.S. worker positions.  By contrast, a petitioner through an EB-5 regional center must show that the regional center indirectly created ten U.S. worker positions.

What is an indirectly created position?  Generally, an indirectly created position is not one that is necessarily employed by an EB-5 investment company.  The term is constantly evolving and requires an individualized analysis by an EB-5 visa lawyer.  For example, recently the immigration agency clarified that an indirectly created position did not require that the position be within a specified geographic area.

Citizenship & Naturalization

 

How Many People Naturalize Each Year?

Have you ever wondered how many people naturalize each year?  See below:

Total Naturalized Citizens: Fiscal Years 2001-2010
2010 675,967 2005 604,280
2009 743,715 2004 537,151
2008 1,046,539 2003 463,204
2007 660,477 2002 573,708
2006 702,589 2001 608,205

Are There Selective Service Requirements For Naturalization Applicants?

Many permanent residents who are thinking about naturalization suddenly start to wonder, “do I need to register for the selective service?”  In many cases, immigrants are surprised to learn that, yes, they are required to register for the selective service.  If a naturalization applicant is required to apply, but fails to apply, the applicant  faces the possibility of being denied naturalization.

Generally speaking, to register you must be:

1) A male,

2)Between the ages of 18 and 25, and a

3) a U.S. citizen, a permanent resident or an undocumented immigrant.

Legislative Outlook

President Obama Comments On Immigration in State of Union Address

President Obama made a brief but positive mention of immigration reform during his State of the Union Address at the end of January.  In his speech, President implored Congress to work together to pass the Dream Act.

Despite the President’s urging, it is unlikely that any immigration reform will occur soon.

Immigration In The News

 

Recent Immigration Insight Blog Posts

 

Immigration Insight is the firm’s immigration blog.  The following is a list of the blog posts from the past month.