Brian Lerner

It’s H-1b Season, but an O-1 is an Alternative

Question: I know that around 300,000 people will apply for only 65,000 H-1B’s. Are there any alternatives as I was also rejected last year?

Answer: It may be possible to apply for the O-1 Visa of which there are no caps and no maximum amount which can be given.

Question: OK. What is an O-1 Visa?

Answer: The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. The O nonimmigrant classification is commonly referred to as: O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry); O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry; O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1 and O-3: individuals who are the spouse or children of O-1’s and O-2’s.

Question: What is the general criteria of an O-1?

Answer: To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

There are several criteria or levels of qualification depending on what type of field you are going to apply for with the O-1. However, the time to apply would be the present (prior to when the H-1B Rush will occur).

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Not from a Treaty Country? Try the L-1 and then the Multinational Visa Petition.

Question: I wanted to start my own business in the U.S. and in fact have sufficient money. However, I was told that I am not able to do so because I am not a citizen of a ‘treaty country’. Is there anything else I can do?

Answer: Yes, you can try the L-1A which actually requires considerably less money. You will have to either have your own company, or start a company in your home country.

Question: What is the L-1A?

Answer: The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1A intra-company transferee classification applies to qualified executives and managers within multinational companies. These individuals can be transferred from their foreign employer to work for up to seven years in the United States for an appropriately affiliated U.S. company.

Question: What if I am not a manager? Is there another type of L-1?

Answer: Yes. The L1B intracompany transferee classification applies to qualified specialized knowledge employees. Such individuals may be transferred from their foreign employer to work for up to five years in the U.S. for an appropriately affiliated U.S. company.

Question: What is the difference between the L-1A and the H-1?

Answer: Many employers in the United States routinely need temporary workers that are highly skilled. Therefore, there are various temporary work visas such as H1B and L1 (L1A and L1B) that allow the employers to hire foreign workers.

Question: Can somebody on the L-1 apply later for the Green Card?

Answer: As long as you were employed in managerial or executive position for one continuous year in the preceding three years (in U.S. or outside the U.S.), you can apply for green card in EB1C category immediately. ... Otherwise, you will have to be on L1A visa status for one year before applying for green card in EB1C category.

Question: Does the EB1C require a $500,000 investment or $1,000,000 investment?

Answer: No. This is not the EB-5 which does require that huge amount. The actual investment for the EB1C and the L-1 are much, much lower.

Question: What is the typical investment for the L-1A?

Answer: Many times, you can invest $10,000 to $20,000 only and that will be sufficient for the L-1A. The minimum for the E-2 would be about $75,000, so it is much less expensive. Also, businesses that do not qualify for the E-2 may very well qualify for the L-1A. It is just a matter of making sure it is prepared properly.

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Don’t have a sponsor? Try the Extraordinary Alien Petition

Question: I have lots of years of experience and lots of publications and awards. However, I don’t have an employer to sponsor me. Is there any other option?

Answer: There might be. EB1-A or EB1-EA is a subgroup of first preference employment-based immigration (EB-1). This immigration preference category is for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics. According to federal immigration law, such persons are not required to have a prospective employer (unlike EB1-B and EB1-C, and other preference categories), but they must be entering to continue to work in their chosen field, and they must substantially benefit prospectively in the U.S. In addition, the petitioner has to show that the foreign person sustained national or international acclaim with recognized achievements. This is the requirement that is most difficult to prove.

Question: What is needed to prove this particular petition?

Answer: While it is not easy, there are a specified list of items upon which we can try to put the supporting evidence.

Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. Membership in an association that requires outstanding achievement as a condition of membership in the field for which the classification is sought. Published material about the foreign person or his or her work in professional, trade journals, or major media publications. (These items must include title, date, author, and must be translated into English)
The foreign person's participation, on a panel or individually, as a judge of the work of others in the same or a related field. Evidence of original contributions, usually through publication, of major significance in the foreign national's fields of science, scholastic, artistic, or athletic
Authorship of scholarly articles in the field, in professional journals, or other major media (national newspapers, magazines, etc.) Display of the foreign national's work at significant exhibitions. Performance in a significant role for organizations or establishments that have a distinguished reputation. Receipt of a higher salary or remuneration than is usual in the field
Commercial success in the performing arts as shown by box office receipts or sales records, cassette, compact disk, or video sales, or other comparable evidence if the above types of evidence do not readily apply to the foreign national's occupations.

The meanings of these evidentiary criteria are ambiguous. Cases in front of AAO (Administrative Appeal Office) have indicated that not every criterion applies to every foreign beneficiary.

Question: Which field do I claim to be extraordinary ability?

Answer: You want to try to narrow down the field. Thus, if you were an engineer, you would narrow that to the type of engineer and then a sub-category within that type of engineer. For example, an aeronautical engineer specializing in flight systems on the F-16. The narrower the field, the higher the chance of success.

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Is the ‘S’ Visa available to you if you testify for the FBI?

Question: I have been notified by the FBI that they want me to testify against some very bad people. Is there anything I can do for my lack of Immigration Status?

Answer: It may be possible for you to get the S Visa. An S nonimmigrant is an individual who has assisted a law enforcement agency as a witness or informant. A law enforcement agency may submit an application for permanent residence (a green card) on behalf of a witness or informant when the individual has completed the terms and conditions of his or her S classification. Thus, not only can you get a temporary ‘S’ Visa, but you can also get a permanent residency if the proper requisites are met.

Question: So what must I do?

Answer: First, you would have to file Form I-854, Interagency Alien Witness and Informant Record. This form is to be completed by the federal or state law enforcement agency or U.S. Attorney’s Office that initially filed for the S nonimmigrant status on your behalf.

Evidence that the witness or informant has fulfilled his or her obligations as an S nonimmigrant and provided information about all potential grounds of inadmissibility must be included with the completed and signed Form I-854 application. Failure to disclose all grounds of inadmissibility may result you being removed (deported) from the United States. There are many more grounds that are waivable under the S Visa verses many other types of visas.

Question: What is the next step?

Answer: After Form I-854 is approved, file Form I-485, Application to Register Permanent Residence or Adjust Status. You should check box “h” in part 2 of the I-485 application and write “S Nonimmigrant” or “S-Qualified Family Member” on the line next to box “h.” Thus, the S Visa is not only available to you, but to family members as well.

Question: When I submit the adjustment package, what evidence should I submit?

Answer: You should submit the following: Two passport-style photos; Form G-325A, Biographic Information, if you are between 14 and 79 years of age; Copy of birth certificate; Form I-693, Report of Medical Exam and Vaccination Record; Copy of Form I-94, Entry/Exit Record (if you have it); Copies of all pages in your passport. If you do not have a passport, you should submit an explanation of why you do not have a passport; A list showing the dates of all arrivals and departures from the United States while you were in S nonimmigrant status with an explanation for each departure of why you left the United States; Evidence of the relationship to the principal S nonimmigrant witness or informant (e.g., birth certificate, marriage certificate) if you are filing for a green card as a derivative beneficiary of an S nonimmigrant; Proof of employment and applicable fees.

Thus, as you can see, the S Visa can give great benefits if you qualify. In response to the terrorist acts of September 11, 2001, Congress passed a legislation making permanent a provision that allows aliens with critical information on criminal or terrorist organizations to come into the United States to provide information to law enforcement officials. This legislation (S. 1424) became P.L. 107-45 on October 1, 2001. The law amends the Immigration and Nationality Act to provide permanent authority for the administration of the “S” visa, which was scheduled to expire on September 13, 2001. On November 29, 2001, Attorney General John Ashcroft announced the “Responsible Cooperators Program” to reach out to individuals who may be eligible for the S visa. The S visa quota allows 200 criminal informants and 50 terrorist informants to be admitted annually to the U.S. Since FY1995, almost 900 informants and their accompanying family members have entered on S visas.

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Don’t let ICE Agents Bully You!

Question: I have a friend that was ‘visited’ by ICE Agents. They told him that he had no rights and that he was going to detention for 20 years unless he signed the voluntary deportation papers. Is this true?

Answer: U.S. Immigration and Customs Enforcement (or ICE) is a U.S. federal government law enforcement agency under the jurisdiction of the Department of Homeland Security (DHS). ICE has two primary components: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). However, how they have been conducting their deportation enforcement falls short of falling under the law.

In sum, under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.

Now, given their authority, that is what they can do. However, they CANNOT force you to sign a voluntary deportation paper. They CANNOT force you to give up your right to fight your case in front of a deportation immigration judge. They CANNOT force you to sign anything.

Question: The ICE official came to the door of my friend and pretended to be a police officer and said “Hello. Please open up - We are the police and doing an investigation”. Is that legal?

Answer: The use of this type of tactic, is particularly egregious in heavily immigrant cities such as Los Angeles and San Francisco, where police and elected officials have tried for decades to distinguish their cops from federal immigration agents, in an effort to convince immigrants living illegally in their cities that they can interact with local police without fear of deportation. The president’s announcement of his intent to dramatically increase the number of people ICE apprehends for deportation has increased concerns by immigrant advocates that the tactic will grow even more prevalent.

There is something fundamentally unfair about ICE exploiting local and state policies that are trying to improve public safety by promoting immigrants trust in law enforcement. Thus, the bottom line is that there are many ways of fighting your case. Do not let ICE officials intimidate you and force you into a corner. Stick your ground and don’t sign anything and request your hearing in front of an Immigration Judge.

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Have no family in the U.S.? Try immigrating through Employment

Question: Hello. I have no family in the U.S., but would very much like to immigrate to the U.S. I am educated. Is there any other way?

Answer: Yes, you can be petitioned through employment through what is known as the PERM. There are 3 major steps to obtaining a Green Card through Employer Sponsorship: 1) Labor Certification through the PERM process. 2) I-140 Immigrant Petition for Alien Worker and 3) I-485 Application to Register Permanent Residence.

Question: What are the typical PERM processing times?

Answer: Un-Audited cases take around 2-3 months from filing to certification and audited Cases: 8 months from filing to certification.

Question: Can you give a general overview of the PERM process?

Answer: PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position. The employer must be prepared to hire the foreign worker on a full-time and permanent basis. There must be a bona fide job opening available to U.S. workers.

Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Question: Must the employer pay a certain amount for the position?

Answer: Yes, it must be what is known as the ‘prevailing wage’. Prior to filing ETA Form 9089, the U.S. employer must first request a prevailing wage determination from the State Workforce Agency (“SWA”) having jurisdiction over the proposed area of intended employment. The U.S. employer is then required to include the following prevailing wage information on the ETA Form 9089: The prevailing wage; The prevailing wage tracking number (if applicable); The SOC/O*NET (OES) code; The occupation title; The skill level; The wage source;
The determination date; and The expiration date. The proposed wage for the foreign national must at least be equal to this prevailing wage.

Question: Is this done online or through mail?

Answer: Actually, the Department of Labor has an online portal specifically for PERM’s and it can all be online if done properly.

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What do you do after Win in Asylum?

Question: I have won asylum as of about two years ago. Is there anything I need to do?

Answer: If you have come to the U.S. as a refugee or been granted asylum in the U.S. -- whether from the Asylum Office of U.S. Citizenship and Immigration Services or by an Immigration Judge in court -- you are now allowed to live in the U.S., accept U.S. employment, and travel and return (with a refugee travel document in place of a passport).

Additional rights will become yours with time, such as that to apply for a U.S. green card after one year, and to apply for U.S. citizenship four years after that. Learn more about how to protect and make the best use of your refugee or asylum status here. However, you MUST apply for the Green Card after the one year grant. It is not automatic and will not happen unless you apply.

Question: Can I bring my spouse and children into the U.S. now?

Answer: Once you have been granted asylum, your immediate family members (spouse and children)—whether they are in the U.S. or outside—are entitled to a “derivative” grant of asylum. If your spouse and children were included in your asylum application and are physically present in the U.S., they will automatically receive asylum at the same time as you.
If they are overseas, or were not included in your application, you can file USCIS Form I-730, Refugee/Asylee Relative Petition to obtain asylum for them. Use a separate form for each family member.

For your spouse to be eligible for asylum, the two of you must have been legally married (that is, with a government-issued certificate) before you were granted asylum. For your children to be eligible, they must be unmarried and younger than 21. Thereafter, once you qualify for the Green Card or residency, they will as well.

As for the CSPA, the grant of asylum while your children who are under 21 years of age will have their age locked in so as to be able to apply as an immediate relative for them even after they are over 21 years old.

Question: Can I later become a US Citizen?

Answer: You may apply for U.S. citizenship (to "naturalize") five years after obtaining your green card by filing Form N-400, Application for Naturalization.

Technically, you are eligible to apply for citizenship five years after you officially become a permanent resident. However, one year of your time as an asylee counts as if you already had a green card. This is known as “rollback.” Hence, your green card will specify your starting permanent residence date as one year before your residence application was actually approved.

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DACA demands by White House show no real intention to extend

Question: I just got my
> DACA extended, but I have heard that Trump now is making all
> kinds of demands.
> Is that true?
>
>
>
> Answer: Yes, that is
> true. Those who favor lower levels of
> immigration have been effusive in their praise. Immigrant
> rights activists are
> outraged.
>
>
>
> Question: But I remember a few weeks ago
> when the president seemed to be closing in on an immigration
> deal with, as he
> said at the time, Chuck and Nancy? A few Trump's
> supporters were so angry they
> protested by lighting their Make America Great Again
> baseball hats on fire and
> posting the videos online. Immigration hardliners found much
> to like in the
> White House list. President Trump on Sunday sent Congress a
> list of sweeping
> immigration changes he says "must be included as part
> of any legislation
> addressing the status of Deferred Action for Childhood
> Arrivals (DACA)
> recipients." Of course, this goes completely against
> what was previously
> stated. Basically, Trump wants the border wall he campaigned
> on to be built, a
> crackdown on illegal immigration and to switch the U.S.
> legal immigration
> system from one that prioritizes family connections to one
> based on merit.
>
>
>
> Answer: Correct. So, the reality is that the Democrats and
> Immigration Advocates
> will never ever agree to this. Thus, you need to start
> thinking about other
> options than DACA. Some other options could be the U Visa if
> you are a victim
> of crime, or the VAWA petition if you are a victim of
> domestic violence.
> Alternatively, you could think about employment based visas
> if you have a
> company willing to petition you. Also, if you are married to
> a resident or
> citizen and qualify, you could do Consulate Processing with
> a Provisional
> Waiver.
>
>
>
> Question: So, there are options which I
> might qualify for under Immigration Law?
>
>
>
> Answer: Yes. However, each case is different and you will
> need to have a
> consultation from an immigration attorney to determine the
> best possible way to
> proceed forward. Do not wait until your DACA completely
> expires to move forward
> as you have an opportunity now to be safe and get the real
> petition for your
> eventual residency started.
>
>
>
> Question: Is there a safer place to live
> at the present time?
>
>
>
> Answer:
> Well, California just passed laws which make California a
> sanctuary State
> against the harsh Trump policies. Thus, if you’re not
> living in California, you
> might want to consider moving there as there are significant
> protections
> against Trump’s hunt to deport everyone he
> can.

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Think of getting married after 2 months of entry? Think again.

Question: I entered a couple of months ago to the U.S. I want to get married and file my adjustment application. Do you see any problems with that?
Answer: Yes, it will be a problem. On September 1, 2017, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which provides: Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible.
Specifically, it has been substantially revised, the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the United States on a nonimmigrant visa or temporary basis.
 
Question: What Activities Will Trigger the Application of the 90-Day Rule and How Has This Changed from the 30/60-Day Rule?

 

Answer: Though the wording is slightly different, the following actions that are sufficient to trigger the application of the rule: • Engaging in unauthorized employment; • Enrolling in a full course of academic study without authorization and/or the appropriate change of status; • A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States. • Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status.
 
Question: At What Point Does the 90-Day Rule Create a Presumption of Misrepresentation and How Has This Changed from the 30/60 Day Rule?

 

Answer: Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred
within 30 days of entry. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a “reasonable belief” that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary.
 
Question: What if the Conduct Occurs More Than 90 Days After Entry into the U.S.?
Answer: Under the new 90-Day Rule, no presumption of willful misrepresentation arises if the individual violates status or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States. However, if the facts of the case give rise to a “reasonable belief” that the individual misrepresented the purpose of his or her travel at the time of the visa application or application for admission, rather than providing the opportunity to
present evidence to the contrary, the Consular Officer must request an Advisory Opinion.
This, it now is easier for officers to make the fraud charge and harder for clients to get around it. Thus, be sure before you do anything inconsistent with the B2 Visitor Visa status that you seek the advice of an immigration attorney.
 
 
 
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Prosecutorial Discretion is an option since DACA is rescinded

Question: My DACA expires in about 7 months. However, what will happen after that? Do I have any other options?
Answer: You do have options of which many you will need a personal consultation. However, there is what is known as prosecutorial discretion which is still a possibility.
 
Question: What exactly is prosecutorial discretion?
Answer: “Prosecutorial discretion” is the authority of an agency or officer to decide what charges to bring and how to pursue each case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. It is essentially a packet which argues why you should not be deported.
 
Question: When can I apply for prosecutorial discretion?
Answer: Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.
 
Question: Who exactly will decide on my prosecutorial discretion packet?

 

Answer: ICE, USCIS, and CBP officers have the authority to exercise prosecutorial discretion. Because prosecutorial discretion is a process that determines whether the government is going to pursue enforcement in a case, the initial decisions are made by those immigration officers assigned to the case. Once the initial decision is made to issue a Notice to Appear (a document that formally initiates removal proceedings by charging an individual with immigration violations), further decisions about continuing the government’s case will be made at higher levels within ICE or DHS. The June 2011 Morton memo clarified that the following ICE officers have the authority to exercise prosecutorial discretion: officers, agents, and their supervisors within Enforcement and Removal Operations who have authority to engage in civil immigration enforcement; officers within Homeland Security Investigations who have authority to engage in civil immigration enforcement; attorneys and their respective supervisors within the Office of the Principal Legal Advisor who have the authority to represent ICE in immigration court; and the Director, Deputy Director, and senior staff of ICE. Ultimately, the Secretary of Homeland Security, as the official within the executive branch specifically charged with enforcing the Immigration and Nationality Act, is in a position to exercise prosecutorial discretion over every case. Because DHS now has announced that the Morton memo will apply to USCIS and CBP, there may be further guidance issued clarifying who within these two components has prosecutorial discretion authority.
 
There are many ways to make the packet more persuasive. Leave time and show all the hardships you can in order to try to get it approved.
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