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Recent Updates
February 16, 2012
Marriage Breakdown, Divorce and Green Card ? Help is Available
January 30, 2012
Understanding When You are Qualified to Self Petition for a U.S. Permanent Residence (Green Green Card) Without a Sponsor
January 06, 2012
The Best News Yet for Undocumented Foreign Nationals Immediately Related or Married to U.S. Citizens
January 03, 2012
Can the Priority Date From a Previously Denied I-130 Petition, Based on Marriage, Ever be Salvaged or Beneficial in Future?
December 20, 2011
The Road from NACARA to Legal Permanent Resident
Employment Visas
Ability to Pay and Employment Based Sponsorship of a Foreign National
Posted by: ScottMond Law Firm
October 23, 2011
An I-140 is a petition by a U.S. Employer who seeks to sponsor and employ someone who is abroad or a foreign national. Small, large or new companies may sponsor a foreign national once they can demonstrate an ability to pay the employee. The sponsorship is for a future job since there are very stringent requirements that need to be met before a foreign employee may begin working.
The three essential steps are 1) PERM- Labor Certification; 2) I-140 - Petition for Foreign Worker; and 3) I-485- Application to Adjust status to a U.S. Permanent Resident. The purpose of this short blog article is to point out a common error in the I-140 stage regarding the "Ability to Pay" which can result in a denial of the Petition.
Before an application can be filed with U.S. Citizenship and Immigration Services ("USCIS"), an extensive process called a Labor Certification -PERM must be completed. It is a complex, time sensitive semi-supervised recruitment process to ensure there are no U.S. Citizens or Permanent Residents available and qualified for the position being offered to the beneficiary (foreign national). Once the Department of Labor ("DOL") is satisfied, they certify the PERM application -Labor Certification. This certified document must be included in any submission of an I-140 Petition to USCIS.
The date DOL certifies the PERM Labor Certification is considered the "priority date". This priority date will eventually appear on an I-140 Notice of Action (I-797) issued by USCIS, and is a critical date that governs many critical stages of the process including when a foreign national client becomes eligible to adjust status to a U.S. Permanent Resident.
It is also the critical date when the employer must demonstrate that he or she began having the ability to pay the prevailing wage (determined by the DOL) to the beneficiary. The formal definition of priority dates and ability to pay may be found at 8 CFR 204.5 (d)and(g)(2).
In essence, an employer must carefully plan with an immigration attorney when he or she should begin the process of sponsoring a foreign national, and ensure that the ability to pay will be met by the priority date. With careful planning and an understanding of different ways an employer can meet the ability to pay requirement, the I-140 petition and I-485 application for Permanent Resident status should be successful.
For additional questions please contact us at info@scottcclaw.com or our telephone numbers are conveniently listed at www.scottcclaw.com
ScottMond Law Firm
Attorneys-at-Law
Keeping the L1 Visa Alive for New and Small Companies After the One Year Initial Period
Posted by: ScottMond Law Firm
April 04, 2011
The initial one year period of approval for an L1 Visa in the U.S. is essentially a "trial period." The purpose of this article is to explain to our clients the importance of establishing a Dun & Bradstreet report (D&B report) within the first year of an L1 Visa approval.
U.S. Citizenship and Immigration Services (USCIS) has begun using an instrument called VIBE (Validation Instrument for Business Enterprises), a web-based tool using commercially available information from an Independent Information Provider (IIP). In many cases, Dun & Bradstreet (D&B) is used. USCIS scrutinizes even small start-up companies if they are not registered with Dun & Bradstreet, and the L1 Visa will consequently be denied.
Dun & Bradstreet is a company that provides subscribers with a ratings directory and credit reports of corporations. It also publishes financial composite ratios.
UCIS also compares information in D&B with information that is provided in the Visa petition, and makes an issue of any discrepancies. For example, if the D&B shows 20 employees and the I-129 form states 40 employees because the employer has not updated the D&B data, this is a problem. The employer has the responsibility of maintaining up-to-date information on D&B.
When our office begins representation, it is essential to lay a solid relevant business foundation for an L1 Visa. We will go over the D&B report well in advance of the L1 Visa renewal period. With this step in place, L1 visa renewal success with USCIS is maximized. For questions, you may contact us at info@scottcclaw.com or call one of the offices, locations for which can be found at http://www.scottcclaw.com/.
ScottMond Law Firm
http://www.scottcclaw.com/
H1B Employee Tip Q &A
Posted by: ScottMond Law Firm
January 18, 2011
Many of our client's have experienced layoffs requiring them to seek alternative employment in H-1B status. Porting over to another employer requires a very detailed legal analysis by an experienced immigration lawyer. Our law firm provides tips from time to time on various situations that the H-1B visa holder may find him or herself experiencing. Here is an example of one:
Scenerio and Question
If an employee currently has 5 months remaining within his initial 6 year term. He or she transfers from Company A to Company B. Company A already filed his or her I-140 which is approved. Can employee then transfer to Company B and request an extension for 3 years based on the I-140 filed with Company A, or can he or she only file an extension/transfer for 5 months with Company B?
Answer
Good News: He or she can ask for the 3 years as long as company A does not withdraw the I-140. And, if company A withdraws, company B should file promptly.
You may contact our law firm at info@scottcclaw.com or through our website http://www.scottcclaw.com/. Our telephone numbers are also displayed on the website.
ScottMond Law Firm
H1B Visa Tips on Getting a Fast Approval From U.S. Immigration
Posted by: ScottMond Law Firm
December 08, 2010
See Important H1B Visa Tips on Getting a Fast Approval from U.S. Citizenship and Immigration Services:
- Have a headhunter verify that your job requires the minimum of a bachelor's degree and put it in writing.
- Find job Postings on Monster.com or Career Builder.com that clearly states the minimum of a bachelor's degree is required for the foreign national employee's position.
- Complete the LCA with the Depart of Labor (DOL) immediately once it is determined that this job is a specialized profession because it requires the minimum of a bachelor's degree.
- Employers should write a business necessity letter with an experienced immigration attorney that needs to be submitted to the U.S. Citizenship and Immigration Services ("USCIS")
- Do not include financials for the business or employer unless UCIS explicitly writes and asks that you supply this information.
- Ensure that you have all credentials evaluated that were not earned in the United States.
- Ensure that there are no blanks on the application I-129. Fill in LCA code wherever required.
- Make sure signatures are signed on I-129 in two key spots. (Often only one spot is signed and can cause a rejection).
- Consider using Premium Processing which guarantees a decision on your H1B visa within 15 business days.
If the H1-B cap is close, work with an immigration law firm and attorney that has good support staff. A solo immigration with no support staff may miss important information and make mistakes due to basic human nature. A proper system and staff in place ensures the quality control needed to ensure that important items will not be missed, despite the "H1B rush". A fast turn around is indeed required when H1B visa's will run out for the fiscal year.
ScottMond Law Firm
Immigration Lawyers Serving Families, Individuals and Businesses
(703)261.6881 (main office number)
(301)251.4003/202.296.0122 (Maryland Office/Washington D.C Office)
A Win-Win Situation- Investing in the United States Temporary and Permanent Investor Visas
Posted by: ScottMond Law Firm
September 22, 2010
As the United States has recently experienced a downturn in the economy, it is exciting to know that jobs can be created in the United States when foreign nationals make a decision to invest in the U.S. economy by opening a company. It's a "win-win" situation. Investors are able to gain permanent or temporary residency, while jobs for United States Residents and Citizens are created.
The purpose of this short article is to discuss the minimum financial requirements needed for foreign nationals to invest in the United States and successfully achieve Permanent Residency (Green Card status) through EB5 option. Likewise, the E-2 visa financial requirements are briefly discussed here as well.
Generally, EB5 is fifth preference category visa that allows a non-U.S. resident or foreign national to acquire Permanent Resident Status in the United States if they meet significant financial requirements, and other guidelines are satisfied. EB5 allows for conditional residency for persons who, after Nov. 29, 1990, invest $1,000,000.00 (or under certain circumstances $500,000.00) in new commercial enterprise that employs 10 United States Citizens or authorized immigrant workers full-time and engage in the business through day-to-day management or policy formation. 7.1% of worldwide visas per year of which 3,000.00 are set aside for "targeted employment areas".
Financial Sources. Invests may be cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the entrepreneur. If a loan is taken it must be secured with assets that the foreign national stands "to lose" and is "at risk" to qualify for the visa. The secured assets must have a value equal to or greater than the loan received. The secured assets must be somewhere where they can be reached by the lender if the EB-5 investment fails and the investor defaults on the loan.
E-2 visa alternative. Alternatively, the E-2 visa is a temporary investor visa. It requires significantly less as a means for a foreign national to open a company and invest in the U.S. From our firm's experience, an investment as low as $50,000.00 can satisfy the requirement for this visa if it matches the nature of the business being opened.
We invite you to contact our law firm at (703)955.7998 or info@scottcclaw.com or glendiasm@scottcclaw.com if you have questions on the EB5 or EB2 investment options.
ScottMond Law Firm
Attorney-at-law
H-1B Worker Laid Off? Understanding the Change of Status in Relation to Yearly Cap
Posted by: ScottMond Law Firm
August 17, 2010
Individuals holding H-1B visa status who are laid off have the option to change status to another non-immigrant category such as a F-1 visa. However, whether one would be subject to the cap when if he or she elects to return to H-1B status later needs to understood by the H-1B non-immigrant worker. Also, whether one's time in another status counts against the 6 year maximum allowable time in H-1B status needs to be considered.
H1B Cap. First, if a foreign national worker changes to another status, such as F-1, will he or she later be subject to the cap when they want to return to H-1B status? In most cases, the answer is no. Generally, the only way to "trigger" the cap is if a worker is going out of the country for more than one year. So if Employee A is terminated from Employer A and then switches to F-1 status for 2 years; Employee A is not subject to the cap if he does not leave the country for more than 1 year when he applies for a new H-1B visa for Employer B.
Six Year Time Limit. Next, will one's time in another status count against the 6 year limit on H-1B visas? Again, the answer is no in most circumstances. Admission is for a maximum of 6 years in H-1B status. Although, there are ways to extend the status in 1 to 3 year increments based on an employer filing a petition, we have not discussed that issue here. Continuing with our example, a foreign national in F-1 status for two years has not used two years of their 6 year limit in H-1B status.
Change of status can be a successful way to bridge one's immigration status. Consulting with experienced and skilled legal counsel is essential.
ScottMond Law Firm
Washington D.C. (202)296.0122
