Author: SCwpadmin

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DHS Report Proposes Reduction of L-1 Visas

An August report by the Department of Homeland Security has proposed reducing the number of available L-1 visas, which is not currently capped. The report by the DHS’s Office of Inspector General suggests that L-1 visas could be used to avoid the more restrictive H-1B visa process, although there is no definitive evidence that this is currently occurring.  In fact, H-1B visas are more highly sought than L-1 visas and have been for years.

The intent of the L-1 visa classification is for  a U.S. employer to transfer an executive or manager from one of its  foreign offices to one of its U.S. offices and may also be used by foreign companies to establish a new U.S. office. There are two types of L-1 visa, the L-1A for executives/managers and the L-1B for those with specialized knowledge. The nebulous definition of what constitutes “specialized knowledge” is another issued raised by the report.  L-1 visas also have perks that H-1B visa do not, such as the ability for dependent spouses to receive work authorization while in the U.S.

Since L-1 visa applications can be presented for adjudication to Customs and Border Patrol (CBP) officers along the U.S.-Canadian border instead of being submitted to a USCIS office, the report also scrutinized whether CBP officers sufficiently trained to review the applications. While the CBP contends that its officer are properly trained, they have agreed consider training recommendations outlined in the report.

Stern & Curray will continue to monitor the impact of this report on L-1 visa applications. More information about this visa classification can be found under Employment Visas.

 

by SCwpadmin SCwpadmin 460 Comments

Effect of Government Shutdown on Immigration

The shutdown of the federal government does affect applying for certain immigration visas.  Fortunately, many services provided by USCIS, including processing of various petitions or applications for immigration benefits, will continue as they are fee-based.  Therefore, applying to USCIS for non-immigrant petitions or permanent residence will continue at this time.  USCIS offices are also open for interviews and appointments as scheduled.

Unfortunately, certain types of applications for immigration benefits are affected because they involve the U.S. Department of Labor, which is shutdown.  Petitions to seek H-1B or E-3 status for employees cannot be completed at this time because a necessary component of these petitions is obtaining a labor condition application from the Department of Labor.  Similarly, labor certification applications for employment-based permanent residence cannot be completed because the DOL is closed and therefore not accepting applications.  While employers can complete preliminary work such as gathering information and documents, H-1B, E-3 and labor certification applications cannot move forward to completion until the DOL reopens.

The E-verify system is also shutdown.  Therefore, employers will not be able to verify employment eligibility of any new hires or take any action in E-verify.  The Department of Homeland Security has suspended the 3 day rule for E-verify cases that are affected by the shutdown and indicated that it will provide additional guidance once the federal government is reopened.  We remind employers to be sure to continue to complete their form I-9’s for new hires within 3 days of hiring.

Immigration courts around the country are also affected.  The court has announced that it will continue to hear cases of individuals in immigration detention, but is suspending all other functions due to the shutdown.  Cases docketed during this time will be reset for future hearing dates.

The Department of State has announced that visa operations at U.S. consulates abroad will continue as they are fee-based.

We will provide further information as we receive it.

by SCwpadmin SCwpadmin 353 Comments

Ken Stern Voted Best Immigration Lawyer

Earlier this month, Senior Partner Ken Stern was voted Barrister’s Best Immigration Lawyer. In over 30 years as an immigration attorney, “Ken Stern has done just about everything in immigration law – he is past chair of the American Immigration Lawyers Association, a group that’s honored him with more than one award including a lifetime achievement award in 2002.” The Barrister’s Best is an annual selection of the best of the best in the legal profession by Law Week Colorado.

Ken’s practice encompasses all areas of immigration law including all aspects of business and family immigration law, investor visas, and intra-company transferees. Ken works closely with HR Professionals and Corporate Counsel to help their companies develop a strategic vision for using immigration visas as a way to attract and retain the best talent from around the world. He also helps companies develop effective and efficient internal practices and policies in the area of immigration law. (More about Ken Stern)

 

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Colorado Voices Its Support for Comprehensive Immigration Reform

This week, more than 50 Colorado businesses and civic organizations joined together to urge Colorado representatives to vote in favor of comprehensive immigration reform.  In a letter emphasizing Colorado’s unique ties to the immigrant community, the group pointed out how immigration reform will benefit Colorado’s tourism and agriculture industries by providing a steady stream of willing workers.  The letter also urged immigration reform as the right thing to do for Colorado immigrant families.

Aspen’s Chamber of Commerce endorsed the letter just before U.S. Rep. Scott Tipton’s (R-Cortez) visit to the mountain town, scheduled for Friday.  The Colorado Immigrant Rights Coalition reports that immigration activists will be on hand during Rep. Tipton’s visit to push the message home.

by SCwpadmin SCwpadmin 417 Comments

Amended Policy Regarding False Claims to Citizenship

The Department of Homeland Security and the Department of State have outlined an amended policy regarding false claims to citizenship.  From now on, a person will only be found to be inadmissible for making a false claim to citizenship if the claim was “knowingly made.”  The burden of proof remains with the individual to provide an affirmative defense.  Additionally, the policy states that persons who were under 18 years old at the time of making a false claim to citizenship may use their minor status as a defense based on the premise that they are unable to fully grasp their actions. This policy shift is a helpful move forward so that people are not inadvertently found to be inadmissible for mistakenly claiming to be a U.S. citizen.

by SCwpadmin SCwpadmin 80 Comments

Immigration Reform Still on the Table for 2013

As immigration activists continue to put the pressure on the government to pass immigration reform, there have been signs that a vote on more limited immigration reform bills may occur in 2013.  On Sunday, President Obama told ABC’s “This Week with George Stephanopoulos” that if the Senate’s immigration reform bill were put up for a vote in the House, it would pass.  While House leaders have made no indications that the Senate’s bill will be presented for vote, other immigration and border security bills may be considered by the House in 2013.  In a memo to House Republicans, House Majority Leader, Eric Cantor, recently stated that the Judiciary and Homeland Security Committees have produced bills which the House may consider this fall.   The Chair of the House Judiciary Committee, Bob Goodlatte, also stated that he expected votes as soon as October on bills related to border security, internal enforcement, guest workers, and high-tech visas.   Nevertheless, according to Mr. Cantor, it appears that any other immigration related reforms will not be considered until “we pass legislation securing our borders and providing enforcement mechanisms to our law enforcement officials.”  We will continue to keep you apprised of any new developments on immigration reform.

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Ken Stern to Speak on the Critical Ethical Issues of Immigration Reform

Attorney Ken Stern will be speaking to the The Osher Lifelong Learning Institute (OLLI) at the University of Denver as part of their summer seminar series.  His talk, entitled “The Real Issues behind Comprehensive Immigration Reform,” will explore the critical ethical issues and matters of principle that need to be resolved as part of our ongoing immigration debate as reflected in comprehensive immigration reform.

OLLI is an adult learning membership program designed for men and women age 50 and “better” who wish to pursue lifelong learning. OLLI members, from diverse backgrounds and professions, share the desire to stay intellectually active and engaged.

 

by SCwpadmin SCwpadmin 75 Comments

DOMA Ruling Clears the Way for Immigration Sponsorship for Same-Sex Spouses

With a truly historic decision, the U.S. Supreme Court ruled the Defense of Marriage Act (DOMA) unconstitutional, paving the way for U.S. citizens and permanent residents to sponsor their same-sex spouses for immigration benefits.  The 5-4 ruling was celebrated at the annual convention of the American Immigration Lawyers Association, which began the same day the Court issued its ruling.  Prior to the ruling, some citizens had taken the bold move to apply for permanent residence for their same-sex partners, only to have their petitions denied due to DOMA.  Director of the USCIS, Alejandro Mayorkas, speaking at the convention, stated that USCIS had kept track of all the applications that had been denied under DOMA and alluded that USCIS may take corrective action on its own.  Already the first foreign gay spouse has received permanent residence and Secretary of Homeland Security, Janet Napolitano, has issued an implementation statement clarifying that in general individuals can sponsor their same-sex spouses for permanent residence provided they were married in a state in which same-sex marriage is legal.  Stay tuned for further developments related to this exciting news.

 

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The New Reforms: What You Need to Know



Originally published in the May 20, 2013 edition of Law Week Colorado.

By Maya Wilbourn   


The Senate “Gang of Eight’s” bipartisan comprehensive immigration bill, SB 744, makes great strides in fixing our current broken immigration system, which tears families apart, hurts businesses and deters the best and the brightest from staying in America.  It also shows the price of compromise and the give and take that almost always accompanies a comprehensive solution to a complex problem.  
Undocumented can finally get in line                               
The bill allows undocumented immigrants who entered the U.S. before December 31, 2011 to apply to become registered provisional immigrants, or RPIs, after paying fines and back taxes.  These immigrants would receive authorization to work in the U.S. and travel abroad.  According to the bill, RPIs must wait 10 years and the Department of State must certify that the current immigrant visa backlogs have cleared before they could apply to become lawful permanent residents.  After three years as legal permanent residents, they could apply to become naturalized citizens. 
DREAMers, or those individuals who entered the U.S. before age 16, could apply to become lawful permanent residents after holding registered provisional immigrant status for five years, passing a background check, earning a high school diploma and pursuing higher education or military service.  DREAMers who become legal permanent residents would be eligible to apply to become naturalized citizens immediately. 
New family member restrictions
The bill would speed up the processing of immigrant visas for spouses and children of lawful permanent residents by reclassifying them as “immediate relatives.”  The existing system keeps these families apart for two or more years.  The bill would also allow immediate relatives to bring derivative family members and would bring back the V visa to allow certain family members to stay together while waiting for the processing of immigrant visas.  
On the other hand, the bill also contains provisions restricting family-based categories including the elimination of the fourth preference category for brothers and sisters of adult U.S. citizens.  It also limits U.S. citizens from sponsoring their married sons and daughters over age 31.  
Merit-based system replaces lottery
The bill replaces the diversity visa lottery, which awards immigrant visas to individuals from countries with low rates of immigration to the U.S., with a new two-track merit-based system for permanent residency.  The first track awards points to applicants for factors such as education, length of employment, type of employment, family members in the U.S. and length of residence.  The second track establishes a process to eliminate the backlog of pending family-based and employment-based immigrant visas and also provides a way for people in registered provisional status to eventually become lawful permanent residents. 
Employment-based system changes
The bill creates a new temporary W visa for less-skilled workers in order to stem the future flow of undocumented immigration, an important piece that was not included the last time comprehensive immigration reform was passed in 1986.  The program starts with a 20,000 annual cap that can rise up to 200,000, depending on a formula and recommendations of a new federal bureau.  Although the cap may not be sufficient in early years, it is the product of compromise between industry and labor unions.  The bill also provides some relief to the agriculture industry by creating a new temporary agricultural worker program to replace the antiquated H-2A program and allowing certain undocumented agricultural workers to stay in the U.S. with a new “blue card.”
For H-1B professional workers, the bill increases the annual cap to a floor of 110,000 and a ceiling of 180,000, allows spouses to work and gives terminated employees a grace period.  At the same time, the bill imposes new recruitment and wage requirements that are unnecessary and will result in immigrants being paid more than their U.S. citizen coworkers.  There is also a restriction against the outplacement of workers, which ignores the way our economy works in many sectors.    
A long needed measure for entrepreneurs is included in the bill, which creates a temporary X visa and a new category for permanent residency for immigrants investing in businesses, creating jobs and generating revenue. 
The bill exempts the following permanent residency categories from annual numerical limits: employment-based first preference immigrants, doctoral degree holders, physicians who completed foreign residency requirements and employment-based derivative family members.  
Additionally, the bill requires all employers to use E-Verify within five years and increases the penalties for employer noncompliance.
The time is now
As is often the case with political compromise, the Senate bill does not solve everything.  But it provides a path for the undocumented, increases immigrant visa numbers, eliminates the backlog, creates more employment visa categories and allows young DREAMers to go to college.  The public overwhelmingly supports immigration reform and lawmakers from both sides should keep the momentum going to pass a good bipartisan bill in 2013.
-Maya Wilbourn is a senior associate attorney with Stern & Curray.  She can be reached at 303-407-4100.
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