California Immigration Lawyer Blog

In order to obtain a H-1B visa, a potential employee is required to show that he or she has an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment. 8 C.F.R. Section 214.2(h)(4)(v)

Licensing is required for certain professionals in California: occupational therapists, physical therapists, architects and social workers, to name a few.

If you do not have a license to practice the occupation, there are several other "work-arounds" that you may pursue and still obtain a H-1B visa.

• Obtain a temporary license
Many occupations allow professionals to obtain a temporary license. For instance, it can take social workers years before they are eligible to take the licensing exam but applicants may apply to be "Associate Clinical Social Workers" (ASW) and work under the supervision of a Licensed Clinical Social Worker while they are pursuing their post-masters experience and preparing for the licensing exam. USCIS regulations permit such employment if a temporary license is available and if the duties of the occupation can be performed without a permanent license. In this situation, USCIS will examine the nature of the duties, the level at which the duties are performed, the degree of supervision received, and any limitations placed on the worker. If an analysis of the facts demonstrates that the individual under supervision is authorized to fully perform the duties of the occupation, H classification may be granted. 8 C.F.R. Section 214.2(h)(4)(v)(B)
• Become licensed in another state that is faster
I am not familiar with the licensing requirements of all states but some states may have a faster licensing process than California does. Once licensed in another state, it may be possible to work in California for a brief time while applying for licensing in California. For instance an occupational therapist who holds a valid license in another state may work in California for 60 calendar days from the date he or she submits an application to the Board of Occupational Therapy.
• Work under the license of a professional
For some professions it is possible to work under the license of a professional. Architects have to go through a lengthy process to become licensed in California. They must go through an intern development program and take exams. While going through this process, they may work as "intern architects" for a licensed architect in H-1B status.

Continue reading "License requirements for H-1B employees in California" »

Posted by Geri Kahn | Permalink | Email This Post

Posted In: H-1 B Visas

When people start to file immigrant petitions with US Citizenship and Immigration Services ("USCIS"), they realize that there is a fee for every part in the process. There is a fee for the relative petition paid to USCIS, and a fee for the visa, paid to the Department of State. Now there is a fee to have the green card processed and mailed to you because somehow all of the other fees you paid do not cover that cost.

Beginning in February 2013, USCIS began charging a "USCIS Immigrant Fee." This fee is required for all persons immigrating to the United States by obtaining a visa at a consulate or embassy abroad, including Canada or Mexico.

The fee is paid online after receiving the visa package from the Department of State and prior to entering into the United States. The fee must come from a U.S. bank so it generally means that the sponsor or a relative in the United States will be paying the fee. The fee is currently $165 and it is per person.

There are a few exceptions of persons with certain statuses who do not have to pay the fee. These exempt statuses include:

• Children who enter the United States pursuant to the Orphan or Hague Adoption programs
  
• Iraq and Afghan special immigrants
  
• returning residents (SB-1s)
  
• K visas
  

The USCIS immigrant fee is paid online. You will need the following information to pay:

• The alien number of the applicant;
  
• The Case ID number of the applicant;
  
• Your checking account information, or;
  
• Your debit or credit card information.

  If you do not pay, you will not receive your green card. It is therefore advisable to pay the fee as soon as you receive the packet from the Department of State.

  
  

  Posted by Geri Kahn | Permalink | Email This Post

  Posted In: Consular processing , Department of State , USCIS , Visa Petition

Being close to Silicon Valley, and in this day and age, you would think that original signatures would no longer be required on USCIS forms. Unfortunately they are required. In fact, USCIS has stated in their official blog that if an application or petition does not contain an original signature it will be rejected.

The guidance that USCIS gives is divided into two parts; the first is for attorneys filing applications and the second is for individuals filing on their own. For attorneys, it is important to note that an attorney must sign Form G-28, Notice of Appearance and have the petitioner or applicant also sign it. The original must then be submitted with the filing.

If an individual is filing alone, he or she must sign the application or petition and then submit the original to USCIS. Parents or guardians may sign for children under the age of 14.

USCIS does accept some forms electronically and for those forms, an electronic signature is acceptable. If you are filing on a paper form though, you will need your pen. To read more about signatures, see USCIS' fact sheet on Signature Requirements for USCIS forms.

Live from my San Francisco office, I will giving a presentation on US Immigration Law while in the virtual world of Second Life.© The presentation will take place on April 6, 2013 at 10:00 a.m.

I will discuss immigration law in general and then focus on family-based immigration law. No prior knowledge of immigration law is necessary because I will define basic terms and statuses and explain our government's quota system. I will describe how a citizen may petition for a fiance or spouse to immigrate to the United States. Finally, I will discuss current events including the Defense of Marriage Act and proposals for immigration reform.

You will need to log onto Second Life in order to see the presentation. After you log into Second Life, you may go to the presentation by transporting your avatar to the Second Life Bar Association's outdoor theater here: http://maps.secondlife.com/secondlife/Justitia/171/84/954

The Department of Homeland Security recently released a publication, "U.S. Naturalizations: 2012, "which provides statistical information on the numbers of people naturalizing, the gender of applicants and the countries they come from, and more. In 2012, a total of 757,434 persons naturalized. California was the home of the largest percentages of persons naturalizing (21%). It was almost double that of Florida (13%) and New York (12%).

The leading metropolitan area in California where most naturalization applicants lived was Los Angeles - Long Beach -Santa Ana. Interestingly, the San Francisco metropolitan area had the largest percentage decline (7/1%) in naturalizations from 2011 to 2012.

Starting tomorrow, March 4, 2013, immigrant visa applicants who are spouses, children and parents of US citizens (immediate relatives) may start applying for provisional waivers (Form I-601A). A provisional waiver will allow those who need only a waiver due to unlawful presence to apply for the waiver in the United States before going abroad to obtain the visa.

The waiver requires the visa applicant to show extreme hardship to the US Citizen spouse or parent. It is not enough to fill out the form and simply say on it that it would be hard on your relative if you could not return. In preparing waivers, you should submit documentation of the hardship. Such documentation should include at a minimum, written statements (declarations) from the visa applicant and from the US Citizen as to how the visa applicant's departure will be extremely hard on the citizen. This post will discuss the factors that determine hardship. I will give you some sample questions which will help you think about what kind of material to put in your written statement. Finally I will give you some samples to show you good and bad ways to write about hardship.

There are a variety of factors our government looks to when assessing hardship and they are set forth in our case law. These factors include:

• the presence of lawful permanent resident or United States citizen family ties to this country;
• the qualifying relative’s family ties outside the United States;
• the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
• the financial impact of departure from this country; and,
• significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
  

Continue reading "Example questions and statements to establish hardship for provisional waivers (I-601A)" »

On Thursday, March 7, 2013, there will be a free workshop on provisional waivers and Deferred Action for Childhood Arrivals ("DACA"). The purpose of the workshop is to educate potential applicants on the law and the documents needed to apply for either the waiver or for DACA. Lawyers will be present, myself included, to review applications and to answer questions. The event will take place at Armijo High School Library, 824 Washington Street in Fairfield, California and is sponsored by Voces Unidas.

This workshop is very timely as United States Citizenship and Immigration Services will be publishing the form to be used for the waiver a few days prior to the workshop. For more information about the workshop, see the attached flyer.

Photo by kquedquest

A few studies have been published showing the number of potential applicants who may obtain a temporary reprieve of removal pursuant to President Obama's initiative called DACA (Deferred Action for Childhood Arrivals).

The published studies have analyzed numbers at the state level and have further broken them down by Congressional district. The American Immigration Counsel published one such study. ArcGIS used the same numbers to create a map. It is not possible to determine the exact numbers in Solano county as several congressional districts cover more than one county but we can come close

Solano County is part of California's 3rd, 7th, and 10th congressional districts. The 3rd is represented by Dan Lungren, the 7th by George Miller and the 10th by John Garamendi. The AIC study shows the number of potential applicants who may apply now as well as the number who will become eligible in the future. I am including the total number of potential beneficiaries below.

Third District - Solano, Sacramento, Alpine, Amador and Calaveras

2,610

Seventh District- Solano and Contra Costa

7,310

Tenth District - Solano, Contra Costa and Sacramento

5,170

The total of these numbers is 15,090. That is a staggering number when you think about the number of people who will be able to work legally and will pay state and federal taxes.

Today, USCIS published the forms that are necessary to apply for deferred action. In order to apply, you must file Form I-821D, "Consideration of Deferred Action for Childhood Arrivals." This is accompanied by Form I-765, Application for Employment authorization as well as a filing fee of $465.00. All of the forms and instructions for this program are available on the USCIS website. Applications may be submitted after August 15, 2012.

I have been receiving inquiries in my Benicia and San Francisco offices about deferred action. We expect the application form and instructions to be published on August 15, 2012. I will focus on different aspects of the new initiative over the next week on my blog.

A few months ago, Secretary of the Department of Homeland Security Janet Napolitano, announced a new initiative aimed at stopping (at least temporarily) the removal of children illegally in the United States. The initiative provides for a two year renewable reprieve from removal (deportation) to unauthorized persons if they can show the following:

• were under age 31 and had no valid immigration status on June 15, 2012;
• came to the United States before their 16th birthday;
• have continuously resided in the United States between June 15, 2007 and the present;
• have not been convicted of a felony, a “significant” misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety;
• are enrolled in school on the date of the request, graduated from high school, obtained a GED, or were honorably discharged from the Armed Forces.

California leads in terms of the number of potential applicants who may be applying for deferred action. A study published by the Migration Policy Institute shows that California has 350,000 potential individuals who may be eligible to apply under the new law. I believe it will be a great boom to the state economy. Individuals who have been granted deferred action will be issued employment authorization. With 350,000 more people paying income taxes, it can only help.

I am currently working on a cancellation case for an individual from San Francisco. As I work on the case, I am going to write posts on different aspects of this form of relief. This post will discuss the basic statutory requirements for cancellation of removal for permanent residents. (There is another form of relief of cancellation of removal for non-permanent residents but I will not be discussing it in this post.)

Cancellation of Removal is a discretionary form of relief that is available to individuals who are placed into removal proceedings due to criminal and/or immigration violations. The idea is that if they can show that they have been present in the United States for a certain period of time and meet other requirements discussed further below, their removal will be cancelled. In effect what they receive is a second chance to remain in the United States.

The statute that provides for Cancellation of Removal for permanent residents is Immigration and Nationality Act ("INA") 240A(a). This statute allows an Immigration Judge to cancel the removal of an individual if he or she:

• has been lawfully admitted for permanent residence for not less than five years,
• has resided in the United States continuously for 7 years after having been admitted in any status, and
• has not been convicted of any aggravated felony.

In addition, the applicant has to show that he or she has not

• been found by a judge to be a spy, terrorist, threat to national security, persecutor, torturer, to have committed genocide or extrajudicial killing, or severe violations of religious freedom, and
• been previously granted cancellation, or suspension of deportation.

Permanent resident status for five years

The five years starts (is counted from) when the individual has been admitted into the United States as a lawful permanent resident. Time in another status does not count toward this requirement; all five years must be as a permanent resident. If the applicant obtained his or her green card by fraud or mistake, the applicant is not considered to be a permanent resident. Moreover, an applicant generally cannot use his or her parent's permanent resident status to count toward the five year requirement. However, this interpretation may depend upon the circuit in which the applicant is located. In the 9th Circuit, the Court of Appeals ruled in Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that a minor child may rely on his or her parent's lawful permanent resident status to meet the five year requirement.

Seven years of continuous residence

The time when an individual begins to accrue continuous residence begins when an individual is admitted to the United States in any status. Thus, an admission as a tourist or with a temporary business visa may count. The seven year period must be continuous. There is a great deal of case law on what continuous means but basically it means that an individual must be present in the United States without frequent interruptions.

The seven year period may end if one of the following events occurs:

1. The Department of Homeland Security serves the individual with a "Notice to Appear." This is the document which lists the charges rendering an applicant removable and is filed in the Immigration Court.

2. The individual commits an offense that renders him or her removable or inadmissible.

If either of these events occur, the individual stops accruing the seven years of continuous residence necessary to apply for cancellation of removal.

No conviction for an aggravated felony

If an individual has been convicted of an aggravated felony, he or she is ineligible for cancellation. A list of crimes that constitute aggravated felonies is found in INA Section 101(a)(43). There is a great deal of case law about what constitutes an aggravated felony. An individual should consult with an immigration attorney and seek post-conviction relief if necessary in order to avoid having a conviction constitute the definition of an aggravated felony.

Cancellation of removal is discretionary

Even if an applicant meets the statutory requirements discussed above, the applicant still needs to show that he or she merits the relief. The Immigration Judge will weigh both the favorable and unfavorable factors in making a decision. My next blog post on cancellation of removal will discuss discretion in more detail.

I thought I had heard it all but now USCIS has a page on Facebook. Yes, you can now "like" U.S. Citizenship and Immigration Services ("USCIS") on Facebook. To their credit, it is a nice page. It has pictures and posts on a variety of topics such as citizenship, openings of new offices and filing procedures. It also is easy to navigate. It is great to see USCIS reaching out to a place where the public may easily find them.

I am not so sure though that they are going to like what they see. Plenty of the comments are critical. One person responded that TPS (Temporary Protected Status) for Syria came too late. Another individual is advertising his services in assisting with immigration. Yet another criticized the opening of the quota for the H-1B program. I suppose USCIS will have to take the bad with the good.

Overall, if it helps people find the information they need, I think the Facebook page is useful. It seems a lot of people are finding it interesting. They already have 4,331 "likes."