I-130 Backlog Ensues

Image courtesy of the internet

Image courtesy of the internet

The I-130 backlog that started about 6-9 months ago is still causing families to remain separated.  At the American Immigration Lawyers Association annual conference in June, USCIS said that they are aware of the problem and are working on reducing the problem.  From feedback from colleagues I learned that newly filed cases are flying through the process.

So, what does it mean for the cases stuck in the backlog? Well, they appear to be coming out of the backlog but not very quickly.  Upon approval from the USCIS, cases are taking a considerably long time at the National Visa Center for further processing. A case that would have taken about 9 months from start to finish is now taking a good 15 months or more.

What does that mean for US citizen spouses and their families? The answer is not a happy one.  Families are suffering adversely by such lengthy separations.  They are suffering financially as well as emotionally.  Where there are children, US citizen spouses with those children in the US are de facto single parents for the duration of the processing.  Those children are suffering emotionally, both at home and at school which is thereby affecting their future.   It is a heartbreaking situation for all concerned.

I would urge USCIS and the National Visa Center to work together to reduce the backlog of the actually backlogged cases as soon as possible. US citizens and their families deserve to be together without unreasonable delays.

Microsoft To Cut 18,000 Jobs: Immigration Status When Laid-Off

On Thursday July 17, 2014, Microsoft made an announcement that 18,000 will be slashed- most by December 2014 and all by June 2015.  While this is a blow to the economy which will see about 1300 job cuts in Washington State. To the 18,000 employees, it is important for anyone with a work visa in the US to start making plans for post-lay-off.

In 2009 when the economy tanked and resulted is many lay-offs, I had written an article titled “The Importance of Maintaining Status When Laid Off”.  I have added the link here.

Employment-based immigration law is very rigid and one cannot be in the US without employment, should that be the basis of stay in the US. Should one fall out of status for any reason, it will be hard to impossible to get back into status.  So, any change of status must occur before the current status ends (in other words, before the last day of employment, if possible).

Whether you are in Seattle or any part of the United States, the federal immigration laws will apply and immigration status must be a priority consideration for anyone affected.

 

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

We Need Better Immigration Policies for Startups and Entrepreneurs

 We Need Better Immigration Policies for Startups and Entrepreneurs

- Tahmina Watson

“USCIS intends to revoke your H-1B visa because we have discovered you are a co-founder.” Yes. That is indeed what my client learned one morning.  USCIS learned during the renewal process of my client’s previously approved H-1B case that he was an original co-founder.  While my client never intended to hide it, the information was not specifically mentioned in the initial filing.  After a series of requests for further evidence, the final request was regarding the relationship between my client and his company.

My client, a co-founder of his company – who has garnered much praise in the tech industry, employs seven full-time American workers, and has helped create several indirect jobs by virtue of those who use and sell his product – was facing imminent departure from the U.S. His business, business partner, employees, and clients all were also put into limbo as a result.

Why? Don’t we want companies to start here? Well, currently, U.S. immigration law does not have a specific visa category for Startup founders, and the available visa options are far from ideal.  A very strict policy was laid down in a memo on January 8, 2010 by Donald Neufeld, Associate Director of Service Center Operations of USCIS. That memo made some drastic changes in the way H-1B cases would be adjudicated and put immense restrictions on the employer-employee relationship, causing adverse effects to petitions by founders.

To successfully apply for an H-1B as a co-founder, one must categorically prove that the company controls the founder’s employment.  To prove such control, the USCIS expects an onerous amount of corporate documentation, including articles of incorporation, board meeting minutes, shareholder agreements, stock ledgers, etc.

It was my privilege to help my client win this case.  As a team, we brainstormed the type of documentation he would be able to provide.  We decided to send many internal, otherwise confidential, documentation to demonstrate he was always given direction in his work and he was not the one making decisions.  We submitted emails, client contracts, employee information, payroll evidence, references and much more.  It was a challenging request to say the least.

Startups by their nature operate lean and mean.  Startup founders/entrepreneurs are known to work around the clock to ensure their products are successful.  In the efforts to have a successful company, they have employees to supervise and clients to keep happy.  Instead of using all his energy to build the business, my client was anxious and worried about providing enough of the right kind of information to respond to a challenging and burdensome request.  I am sure that during this intense period, my client suffered loss both emotionally and financially.

Lessening the efficiency of a person while they’re trying to get a business off the ground makes no sense. One should not have to defend oneself for being a founder of a company; it should be a matter of pride.  Luckily we were able to successfully demonstrate that his employment was controlled by the company.  Many founders are not so lucky and end up cut off from the start up they helped create by our irrational immigration laws.

We cannot have rhetoric from our government that calls for entrepreneurs and the need to keep high-skilled workers in the U.S., while that same government acts against implementing that ideology.

In the absence of a Startup Visa, I suggest that two changes are made to existing policy with immediate effect.  Firstly, eliminate the use of the Neufeld Memo, at least for founders and co-founders of startups utilizing H-1B visas.  Founders need to operate their businesses.  Often they will have many roles in addition to their primary H-1B job description.  For example, as a business owner, I am not only a lawyer, but a human resources manager, marketing manager, bookkeeper, supervisor and countless others.  To have my company control my job would impede my success.

Secondly, allow the use of cash substitutes such as stock valuation, convertible notes, and other such regularly used methods instead of cash wages.  Startups generally cannot afford high wages, particularly in the early stages.  They need the opportunity to get their companies to the stage where funding can be obtained from investors.  While the policy argument against cash substitutes may be fear of the entrepreneur becoming a public charge, USCIS should impose policy to prevent that and revoke someone’s visa if he or she resorts to public assistance.  Entrepreneurs are resourceful people who do not want handouts from the system.  Give them the chance to start their companies, contribute to the economy, and create jobs for American workers.  After all, America is a nation of immigrants.

**Copyright 2014 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

EB5 Processing Times

The USCIS published current processing times for EB5 applications.  Currently, this is how long it is taking for the following petitions:

13.2 months to process I-526 petitions

7.9 months for I-829 petitions

5.4 months for I-924- applications for regional center status.

August 2014 Visa Bulletin Commentary

The August 2014 visa bulletin was released today. Here is what my readers are looking for:

For all countries except India, China, Philippines, and Mexico: No movement in F2A category leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 200s;  EB2 is current and, and EB3 sees no movement leaving to PD at 1 April 2011.

For India only:  No movement in F2A category  leaving priority date at 1 May 2012, F2B preference advanced 60 days with PD at 1 July 2007;  F4 category advanced 8 days to PD at 1 January 2002;  EB India sees a 4 months and 21 days jump forward  taking PD to 22 January 2009 and EB3 sees some forward movement of 7 days taking us to priority date 8 November 2003.

With the jump forward for EB3 India, it is important for those who are eligible to prepare filing your I-485 package as soon as possible.  Please note you cannot file until August 1st and while the priority date remains current for you.  Good luck to those who can file!

We will report on the September 2014 visa bulletin when it is released. See below for future cut off dates information:

D.  VISA AVAILABILITY IN THE COMING MONTHS

The China-mainland born Employment Third and Third Other Workers cut-off dates have advanced for the month of August, and could do so again for September. There are two reasons for this advance after the retrogression of the cut-off date earlier this summer: 1) The heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date has declined during the past two months, and 2) declining number use in the Family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year, has resulted in availability of several hundred numbers for use in the China-mainland born Employment Third preference.

During the past two months, the India Employment Second preference cut-off date has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit. It must not be assumed that this cut-off date will continue to advance at the same pace during the coming months. A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, at which time the cut-off date is likely to retrogress significantly.

The August 2014 Visa Bulletin Is Out

Today, the Dept. of State released the August 2014 visa bulletin.  Here is a link.  Our usual commentary to follow shortly. Stay tuned!

AILA Annual Conference in Boston a Great Success

The American Immigration Lawyers Association (AILA) helds its annual conference in Boston, MA  from June 18-21. The event was a great success. As mentioned in a previous post, Tahmina was honored to have been invited as a speaker.  Some 3500 attorneys attended the event.

DHS Deputy Secretary Mayorkas and Tahmina Watson

DHS Deputy Secretary Mayorkas and Tahmina Watson

The keynote speaker was the DHS Deputy Secretary Alejandro Mayorkas.  In his speech he said that “we as an agency must ensure that our adminstration of immigration law serves justice and does not deliver an injustice”.  He also called for efforts to have comprehensive immigration reform.  See below a link to his speech.


Below are some more photos from the event. Thank you AILA for holding yet another valuable conference where we all learned much about current process updates as well as substantial legal issues.

 

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Obama will act alone on immigration

Today, President Obama said in a speech that the US cannot wait any longer without immigration reform.  Given that Congress will not act, he has no choice but to take action alone.  He said, “So while I will continue to push House Republicans to drop the excuses and act –- and I hope their constituents will too -– America cannot wait forever for them to act.  And that’s why, today, I’m beginning a new effort to fix as much of our immigration system as I can on my own, without Congress”.  

Watson Immigration Law applauds the president for taking this step. We are greatly disappointed not to see immigration reform at this time, but welcome executive action wherever it can be taken.

Here is a link to the full speech as posted on the White House website.  Also, for the reader’s convenience, a copy of the speech is below.

 

Remarks by the President on Border Security and Immigration Reform

Rose Garden

3:04 P.M. EDT

THE PRESIDENT:  Good afternoon, everybody.  One year ago this month, senators of both parties –- with support from the business, labor, law enforcement, faith communities –- came together to pass a commonsense immigration bill.

Independent experts said that bill would strengthen our borders, grow our economy, shrink our deficits.  As we speak, there are enough Republicans and Democrats in the House to pass an immigration bill today.  I would sign it into law today, and Washington would solve a problem in a bipartisan way.

But for more than a year, Republicans in the House of Representatives have refused to allow an up-or-down vote on that Senate bill or any legislation to fix our broken immigration system.  And I held off on pressuring them for a long time to give Speaker Boehner the space he needed to get his fellow Republicans on board.

Meanwhile, here’s what a year of obstruction has meant.  It has meant fewer resources to strengthen our borders.  It’s meant more businesses free to game the system by hiring undocumented workers, which punishes businesses that play by the rules, and drives down wages for hardworking Americans.  It’s meant lost talent when the best and brightest from around the world come to study here but are forced to leave and then compete against our businesses and our workers.  It’s meant no chance for 11 million immigrants to come out of the shadows and earn their citizenship if they pay a penalty and pass a background check, pay their fair share of taxes, learn English, and go to the back of the line.  It’s meant the heartbreak of separated families.

That’s what this obstruction has meant over the past year.  That’s what the Senate bill would fix if the House allowed it to go to a vote.

Our country and our economy would be stronger today if House Republicans had allowed a simple yes-or-no vote on this bill or, for that matter, any bill.  They’d be following the will of the majority of the American people who support reform.  Instead, they’ve proven again and again that they’re unwilling to stand up to the tea party in order to do what’s best for the country.  And the worst part about it is a bunch of them know better.

We now have an actual humanitarian crisis on the border that only underscores the need to drop the politics and fix our immigration system once and for all.  In recent weeks, we’ve seen a surge of unaccompanied children arrive at the border, brought here and to other countries by smugglers and traffickers.

The journey is unbelievably dangerous for these kids.  The children who are fortunate enough to survive it will be taken care of while they go through the legal process, but in most cases that process will lead to them being sent back home.  I’ve sent a clear message to parents in these countries not to put their kids through this.  I recently sent Vice President Biden to meet with Central American leaders and find ways to address the root causes of this crisis.  Secretary Kerry will also be meeting with those leaders again tomorrow.  With our international partners, we’re taking new steps to go after the dangerous smugglers who are putting thousands of children’s lives at risk.

Today, I sent a letter to congressional leaders asking that they work with me to address the urgent humanitarian challenge on the border, and support the immigration and Border Patrol agents who already apprehend and deport hundreds of thousands of undocumented immigrants every year.  And understand, by the way, for the most part, this is not a situation where these children are slipping through.  They’re being apprehended.  But the problem is, is that our system is so broken, so unclear that folks don’t know what the rules are.

Now, understand –- there are a number of Republicans who have been willing to work with us to pass real, commonsense immigration reform, and I want to thank them for their efforts.  There are a number of Republican leaders in the Senate who did excellent work and deserve our thanks.  And less visibly, there have been folks in the House who have been trying to work to get this done.  And quietly, because it doesn’t always help me to praise them, I’ve expressed to them how much I appreciate the efforts that they’ve made.

I believe Speaker Boehner when he says he wants to pass an immigration bill.  I think he genuinely wants to get something done.  But last week, he informed me that Republicans will continue to block a vote on immigration reform at least for the remainder of this year.  Some in the House Republican Caucus are using the situation with unaccompanied children as their newest excuse to do nothing.  Now, I want everybody to think about that.  Their argument seems to be that because the system is broken, we shouldn’t make an effort to fix it.  It makes no sense.  It’s not on the level.  It’s just politics, plain and simple.

Now, there are others in the Republican Caucus in the House who are arguing that they can’t act because they’re mad at me about using my executive authority too broadly.  This also makes no sense.  I don’t prefer taking administrative action.  I’d rather see permanent fixes to the issue we face.  Certainly that’s true on immigration.  I’ve made that clear multiple times.  I would love nothing more than bipartisan legislation to pass the House, the Senate, land on my desk so I can sign it.  That’s true about immigration, that’s true about the minimum wage, it’s true about equal pay.  There are a whole bunch of things where I would greatly prefer Congress actually do something.  I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.  And in this situation, the failure of House Republicans to pass a darn bill is bad for our security, it’s bad for our economy, and it’s bad for our future.

So while I will continue to push House Republicans to drop the excuses and act –- and I hope their constituents will too -– America cannot wait forever for them to act.  And that’s why, today, I’m beginning a new effort to fix as much of our immigration system as I can on my own, without Congress.  As a first step, I’m directing the Secretary of Homeland Security and the Attorney General to move available and appropriate resources from our interior to the border.  Protecting public safety and deporting dangerous criminals has been and will remain the top priority, but we are going to refocus our efforts where we can to make sure we do what it takes to keep our border secure.

I have also directed Secretary Johnson and Attorney General Holder to identify additional actions my administration can take on our own, within my existing legal authorities, to do what Congress refuses to do and fix as much of our immigration system as we can.  If Congress will not do their job, at least we can do ours.  I expect their recommendations before the end of summer and I intend to adopt those recommendations without further delay.

Of course, even with aggressive steps on my part, administrative action alone will not adequately address the problem.  The reforms that will do the most to strengthen our businesses, our workers, and our entire economy will still require an act of Congress.  And I repeat:  These are reforms that already enjoy the wide support of the American people.  It’s very rare where you get labor, business, evangelicals, law enforcement all agreeing on what needs to be done.  And at some point, that should be enough.  Normally, that is enough.  The point of public service is to solve public problems.  And those of us who have the privilege to serve have a responsibility to do everything in our power to keep Americans safe and to keep the doors of opportunity open.

And if we do, then one year from now, not only would our economy and our security be stronger, but maybe the best and the brightest from around the world who come study here would stay and create jobs here.  Maybe companies that play by the rules will no longer be undercut by companies that don’t.  Maybe more families who’ve been living here for years, whose children are often U.S. citizens, who are our neighbors and our friends, whose children are our kids’ friends and go to school with them, and play on ball teams with them, maybe those families would get to stay together.  But much of this only happens if Americans continue to push Congress to get this done.

So I’ve told Speaker Boehner that even as I take those steps that I can within my existing legal authorities to make the immigration system work better, I’m going to continue to reach out to House Republicans in the hope that they deliver a more permanent solution with a comprehensive bill.  Maybe it will be after the midterms, when they’re less worried about politics.  Maybe it will be next year.  Whenever it is, they will find me a willing partner.  I have been consistent in saying that I am prepared to work with them even on a bill that I don’t consider perfect.  And the Senate bill was a good example of the capacity to compromise and get this done.  The only thing I can’t do is stand by and do nothing while waiting for them to get their act together.

And I want to repeat what I said earlier.  If House Republicans are really concerned about me taking too many executive actions, the best solution to that is passing bills.  Pass a bill; solve a problem.  Don’t just say no on something that everybody agrees needs to be done.  Because if we pass a bill, that will supplant whatever I’ve done administratively.  We’ll have a structure there that works, and it will be permanent.  And people can make plans and businesses can make plans based on the law.  And there will be clarity both here inside this country and outside it.

Let me just close by saying Friday is the Fourth of July.  It’s the day we celebrate our independence and all the things that make this country so great.  And each year, Michelle and I host a few hundred servicemembers and wounded warriors and their families right here on the lawn for a barbecue and fireworks on the Mall.

And some of the servicemembers coming this year are unique because they signed up to serve, to sacrifice, potentially to give their lives for the security of this country even though they weren’t yet Americans.  That’s how much they love this country.  They were prepared to fight and die for an America they did not yet fully belong to.  I think they’ve earned their stripes in more ways than one.  And that’s why on Friday morning we’re going to naturalize them in a ceremony right here at the White House.  This Independence Day will be their first day as American citizens.

One of the things we celebrate on Friday –- one of the things that make this country great –- is that we are a nation of immigrants.  Our people come from every corner of the globe.  That’s what makes us special.  That’s what makes us unique.  And throughout our history, we’ve come here in wave after wave from everywhere understanding that there was something about this place where the whole was greater than the sum of its parts; that all the different cultures and ideas and energy would come together and create something new.

We won this country’s freedom together.  We built this country together.  We defended this country together.  It makes us special.  It makes us strong.  It makes us Americans.  That’s worth celebrating.  And that’s what I want not just House Republicans but all of us as Americans to remember.

Thanks very much.

Obama to Discuss Executive Action on Immigration Law Today

The White House issued the following press release today.  Given that we are unlikely to have immigration reform, President Obama is going to hold a discussion on taking executive action.  It will be today June 30 at 5:30 EST/ 2:30 PST. See below for details. It will be important to tune in for interested in immigration reform.

______________________________________________________

 

Dear Friends –

Today at 2:50 p.m. ET, in a statement at the White House, the President will address the Republican leadership’s unwillingness to bring immigration reform up for an up-or-down vote and announce a new effort to fix as much of our broken immigration system as he can through executive action.

Tune in for this important statement at WhiteHouse.gov/Live starting at 2:50 p.m. ET.

Following the President’s remarks we will host a conference call at 5:30pm ET with Cecilia Muñoz, Director of the White House Domestic Policy Council, to discuss the President’s statement and the path forward. We look forward to your participation.

When:
Date: Monday, June 30th
Time: 5:30 p.m. ET

How:
Dial in: To register, go to www.att-rsvp.com or call 877-471-4350, or 402-516-0110
Passcode: Conference ID #330886

Note: This call is off the record and not intended for press purposes.

Thank you,
Jorge Neri

Leon Rodriguez – New USCIS Director

Image courtesy of the internet

Image courtesy of the internet

This week, the Senate confirmed that Leon Rodriguez will be the new USCIS Director.  Watson Immigration Law congratulates Director Rodriguez on his new appointment.  While this is a challenging role, USCIS has seen many positive changes under former Director and current DHS Deputy Secretary Alejandro Mayorkas.  Dir. Rodriguez has big shoes to fill.

There is still much to improve with USCIS and the tasks are not easy.  If I had a wishlist of what to ask for Director Rodriguez to improve, I would suggest my top 3 to be these:

1. Reduce processing times for I-130s.

2. Reduce the issuance of burdensome requests for further evidence in employment-based petitions, particularly where not necessary.

3. As a Startup Visa proponent, I would ask him to review the policies for visas for entrepreneurs and review how the Entrepreneur in Residence program can be expanded and made more effective.

We congratulate Director Rodriguez, welcome him in his new role and look forward to his leadership!


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