California Immigration Lawyer, Asylum Lawyer, Deportation Attorney, US Immigration Attorney

The last twenty years have seen a very drastic increase in the severity of the immigration consequences of criminal convictions, and, in some circumstances, for criminal conduct, even if it did not result in an arrest or conviction. For this reason, it is more important than ever that the criminal defense of a noncitizen focus not just on minimizing time in custody, but equally on avoiding the deportation that the noncitizen may face upon completion of their sentence.  In

At the less disastrous end of the spectrum of these immigration consequences is the inability to establish the required “good moral character” due to criminal conviction or conduct.  This might prevent an applicant from being approved for naturalization, and it operates to prevent applicants from qualifying for a number of forms of relief from deportation in immigration court. At the other end of the spectrum of immigration consequences are the grounds of deportation for such activity. The dreaded “aggravated felony” crimes are among the worst examples of this movement toward exile of noncitizens for crimes that don’t necessarily carry long sentences when committed by citizens. In addition, a person who returns to the

The immigration consequences of criminal activity are grouped into the two broad categories of inadmissibility and deportability. The grounds of inadmissibility apply principally to applicants who are seeking a benefit from immigration such as admission to the

DRUG OFFENSES

Drug offenses, even those which are quite minor, such as being under the influence, can result in both inadmissibility and deportability.

Crimes involving moral turpitude

The term, “crime involving moral turpitude” (CMT) refers to a classification of crimes which cause both inadmissibility and deportability for non-citizens, even when these same offenses would not be severely punished if committed by a

A crime is often classified as involving moral turpitude when there is an intent to defraud or to steal, to cause great bodily harm, where there is “malice”, or where there is a “lewd intent.” One conviction of crime of moral turpitude causes inadmissibility. The same is true for the admission of committing the offense, even without a conviction. The exception to this harsh rule is what is known as the “petty offense exception” for one CMT carrying a maximum possible sentence of one year and for which the noncitizen received a sentence of no more than six months.

A noncitizen is deportable if convicted of one CMT committed within five years after last admission to the

A noncitizen is inadmissible if he or she has been convicted of two or more offenses of any type for which the aggregate sentences to confinement actually imposed equaled five years or more. This will also be a bar to a finding of good moral character for purposes of naturalization, VAWA and other forms of relief, though in some cases a waiver may be available.

Conviction for domestic violence, regardless of the sentence imposed, is a ground of deportability. Domestic violence is not necessarily a CMT, unless actual infliction of harm or intent to cause serious bodily harm are proven.  

This article is intended as an introduction to a topic in which there are significant legal changes occurring on a daily basis. It is not a substitute for legal research, not for working with an attorney experienced in the intersection of criminal law and immigration law. The central purpose of this article is to encourage caution and careful consideration by anyone potentially facing the consequences described here.

It has been reported that Obama’s aunt filed for an asylum four years ago and was denied. As such she is supposedly “illegal”.  Regardless of the political ramification, it seems that Democrats have already asked for an inquiry how this information was leaked from Department of Homeland Security (”DHS”). Indeed,when someone files an asylum in the United States, this information especially the name of the potential asylee has to remain confidential. -

8 C.F.R section 280.6 provides that information pertaining to any asylum application “shall not be disclosed without the written consent of the applicant.”

If the DHS has actually disclosed this information, there is a likelihood that Obama’s aunt might actually obtain asylum in the United States. Of course, there will be a need to work on other issues on the case but with this limited information on the news, in general, someone in her situation might well obtain an asylum.

Under a case that was decided by the 4th Circuit Anim v. Mukasey (535 F. 3d 243, 2008 US App. LEXIS 17083 (4th Circuit Aug. 11, 2008), it was decided that because DHS breached Anim’s right to confidentiality, Anim now has a new fear of persecution.

Therefore, if it is found that Obama Aunt’s name has been released by DHS, Obama’s Aunt might well be eligible for an asylum. Note that we do not have enough facts on this case to make a determination but a good immigration lawyer might well make a good case for Obama’s aunt.

By Shah Peerally, Esq.

Shah Peerally Law Group PC

Our law group focuses on immigration and nationality laws. We can be reached on info@peerallylaw.com, our website is www.peerallylaw.com - Ph 510 742 5887.

If you are a student, scholar, expert, medical intern/resident, industrial or business trainee, the J-1, exchange-visitor visa may be just right for you. Once you are accepted by a designated exchange visitor program, you are provided with the documents necessary to obtain the non-immigrant visa.

Call us on (510) 742 5887

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Visa Bulletin for August 2008 came out today, there was jump in the EB2 category for Indian Born individuals to June 2006 and EB1 for Indian Born is still current. If your labor certification has a priority date of June 2006 or below or qualify under an EB1 category, please call our office at (510)742.5887 or email info@peerallylaw.com
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Adjustment of status portability is a creation of the American Competitiveness in the 21st Century Act (AC21) Pub. L No. 106-313, 114 Stat. 1251 (October 17, 2000), which amended Section 204(j) of the Immigration and Nationality Act. This law allows employees to accept a job that is in the same or similar occupational classification as the job on which the I-140 petition was based, if an adjustment of status application (I-485) has been pending for 180 days or more. The underlying I-140 petition remains valid, even though the applicant has changed jobs.

The determination that the new job is in the same or similar occupational classification is made by

Comparing the job duties in the original ETA 750 or 9089 or I-140 with the job duties of the new job;
Comparing the DOT or SOC codes of the I-140 with those of the new position;
Comparing the previous and new wage to see if there is a substantial discrepancy.

Jobs with very different responsibilities may still fall under the same occupational classification because the substantive knowledge required for those jobs can be identical.  If the originally intended employer withdraws the previously approved I-140 on or after the I-485 has been pending for 180 days, the I-140 remains valid. If the applicant has not already submitted evidence of the new qualifying offer of employment, the USCIS officer should issue a notice of intent to deny.

An applicant can “port” before the 180 days have passed because there is no requirement that the applicant ever have been employed by the original petitioner while the I-485 was pending. The only requirement is that there was an intent to accept that employment at the time that the adjustment of status application was filed.

With our experience dealing with the immigration issues for United States Citizenship and Immigration Services (UCIS), Department of Labor (DOL) and other immigration entities, we have noticed few common mistakes that most small IT companies make. Such mistakes result in lengthy Request for Further Evidence (RFE) or even denials. As such we have tried to compile in this short release the most common mistakes. Note that the list is non exhaustive but it only includes the common mistakes that our own office have noticed after the filing of more than 300 cases. We are sure that there are many other mistakes that can easily be corrected. This list is also limited to issues pertaining H1Bs new cases and transfers. We will compile another list for Labor Certifications and I-140 soon.

Read full article here

Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277

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In order to remain in the United States permanently after termination of the J-1 period of stay, many foreign nationals must first obtain a waiver of the two-year foreign residence requirement found in INA section 212(e). 
This requirement is a very broad prohibition which prevents previous J visa holders from adjusting status, obtaining a K, H or L visa, applying for cancellation of removal or changing to any other nonimmigrant status except A or G. It is a significant hurdle.

There are 3 ways that certain J visa holders become subject to the two-year foreign residence requirement:
1. The area of training in which they are engaged is on the skills list for their home country;
2. The visa holder came to the US for graduate medical training;
3. The J-1 program was funded by the home country or by the U.S. government.

A waiver of the INA 212(e) foreign residence requirement can be obtained on four different bases:
1. Hardship to a qualifying relative;
2. Risk of persecution to the applicant;
3. Recommendation from an interested government agency;
4. A no objection statement from the foreign government. (This basis is not available to J-1 holders who came to the US for graduate medical training.) The no objection statement must be submitted by the applicant’s embassy directly to the State Department Waiver Review Division and must have the applicant’s case number on the envelope and on the statement itself or it will be rejected. In no objection-based cases, it may be advantageous to have the embassy forward the entire application package so that all of the documents are received together in the same filing.

PROCEDURAL STEPS IN APPLYING FOR THE WAIVER

A data sheet and DS-3035 must be completed and mailed to the Department of State’s Waiver Review Division along with two self-addressed stamped envelopes and a cashiers check or money order for the filing fee.
The Waiver Review Division will assign the applicant a case number and will mail the applicant a set of instructions and a list of required documents to support the waiver application. All supporting documents sent to the Waiver Review Division must contain this case number on the envelope and on the documents.

The Waiver Review Division makes its recommendation on the case to USCIS directly. A copy of that recommendation will be mailed to the applicant in cases involving no objection statements and interested governmental agencies. If the waiver is based on exceptional hardship or persecution, the applicant will not receive a copy of the recommendation.

An interested governmental agency must submit a statement explaining how the public interest would be served by the granting of the waiver and how the applicant’s compliance with the two-year foreign residence requirement would be detrimental to a program or activity of official interest to the agency. The statement must make clear the connection between the applicant’s proposed employment and the agency. Typically, this statement is accompanied by letters from experts in the field and documentation regarding the applicant’s credentials.

Applicants basing their waiver request on hardship or persecution must seek prior consent from USCIS by submitting Form I-612 with a copy of the I-94, documentation of the citizenship or LPR status of the applicant’s spouse or child and of the relationship between the applicant and the spouse or child, Form DS-3035 (Data Sheet), copies of all DS-2019 forms issued to the applicant, documentation of the hardship or persecution, a declaration from the applicant containing all pertinent information, and the filing fee. If USCIS approves the waiver application, it sends its recommendation on Form I-613 directly to the State Department. Denials of such waiver requests made to USCIS may be appealed to the Administrative Appeals Office.

The Waiver Review Division will make a request for the position of the applicant’s sponsor regarding the waiver request, and generally will follow its recommendation. Applicants who have received financial support from a US government source are far less likely to have their waiver granted.

If the Department of State makes a favorable waiver recommendation, the applicant may file for adjustment of status, employment and travel authorization. In cases based on hardship or persecution, the applicant may file for adjustment of status once they receive notification that USCIS has approved the waiver application.  In no-objection and interested governmental agency cases, the adjustment of status application can be filed once the Department of State recommendation has been received.

Introduction:

Most employers believe that the most difficult part of the H1-B Visa process is the H1-B Visa approval process.  However, seasoned immigration attorneys realize that after the U.S. Citizenship and Immigration Services (“USCIS”) approves an employer’s H1-B Visa application, maintaining the valid H-1B Visa is arguably even more difficult. 

This is where an experienced immigration attorney becomes a company’s invaluable asset.  Employees and their employees must adhere to strict H1-B Visa guidelines that carefully define an H1-B employee’s place of employment, job duties, and hours of employment.  A change or addition to any of those categories can potentially trigger a loss of status, or even subject the employer to liability. 

Therefore, this article explores (1) possible situations where an employer must notify the USCIS of changes in a H-1B employee’s duties, (2) whether a new or amended H-1B petition must be filed, and (3) how an employer can properly terminate an H-1B employee to avoid liability.

1. Material Changes – When must an Employer File a New or Amended H1-B Petition

The USCIS requires employers to notify the USCIS of “material changes” in an H1-B holder’s employment.  Though a material change is sometimes defined as a substantial alteration of terms or conditions, it is best to take a case-by-case analysis of whether the USCIS must be notified.  Some examples that constitute a material change include: 

• Place of Employment:
Typically, an H-1B employee must work at the location that is listed in his or hers Labor Condition Application (“LCA”).  If an employer wants an employee to work at a location other than the one mentioned on the LCA, the employer must notify the USCIS and file a new LCA before the employee begins work at the new location.  Otherwise, the court may decide that the employee worked without proper authorization.  Note that an employer does not have to notify the USCIS if the new workplace is “within the area of intended employment” listed on the LCA, or if the employee’s job duties require constant travel – i.e. a circus employee. 

• Job Duties
Since an H-1B employee is employed in a “specialty occupation”, an employer must notify the USCIS of any changes in an H-1B employee’s duties that alter or change the specialty occupation.  The USCIS will determine if there is a material change in the employee’s specialty occupation by considering such factors as new duties and whether these changes place the employee in a different prevailing wage category. 

• Hours of Employment
Generally the employer does not have to contact the USCIS of a change in an H-1B employee’s hours unless it falls below full-time employment (usually at least 35 hours a week).  An employer does have an option of temporarily laying off an employee, but the employer still must pay the employee the prevailing wage.  Otherwise, the employer may be civilly liable. 

• Employer
Once an employee is granted H-1B status, the employee can work for a new employer (besides the initial sponsor) provided that the new employer immediately notifies the USCIS and files a new LCA before the employee joins the new company.

2. Should I File a New or Amended H-1B Petition?

A new employer should file a new H-1B and LCA before the employee joins the new employer. Though the USCIS has not expressly stated any timelines about amended H-1B petitions, it would be prudent for the employer to file before any material change occurs to avoid possible liability or immigration problems. 

However, not all changes in employment conditions must be reported to the USCIS.  These include:

• Name of the Employer
There is no need to immediately notify the USCIS if the sponsoring employer has merely changed their name, as long as the employee’s job duties remain unchanged.  The employer can simply notify the USCIS when they file for the employee’s H-1B extension. 

• Changes in Wages
An employer does not have to notify the USCIS of a change in an employee’s wages unless it falls below the required prevailing wages. 

• Corporate Restructuring – The “Successor-in-Interest” Doctrine
In today’s business world, mergers, acquisitions, or consolidations have become quite common.  An employer is not required to notify the USCIS of such an occurrence provided (1) the employee’s duties remain unchanged and (2) the new corporate entity that resulted from the merger agrees to take on all immigration related obligations and liabilities.  This is known as the “successor-in-interest” doctrine.

Note that though the new corporate entity does not have to file a new H-1B petition, the new employer must meet the following requirements before the corporate change: (1) the new employer must keep a record of which H-1B employees transferred to the new employer, and (2) the new employer must update its public access files – this includes (a) each affected LCA number, (b) how the new employer’s wage system complies with the H-1B requirements, (c) the new employer’s identification number, and (d) a sworn statement by an authorized official from the new company agreeing to assume all immigration obligations and liabilities. 

3. Termination of Employees – Protecting Employers from Liability

Because an employer has to notify the USCIS of any material changes in an H-1B employee’s duties, this naturally includes situations where the employer fires or lays off an employee before the H-1b expires.  An employer is not discharged from the employer’s obligations or duties (included paying wages) by merely terminating the employee; a “bona fide termination” must occur.  A bona fide termination requires (1) formal notice to the USCIS that the employee was fired, (2) that the employer offer to pay the terminated employee’s “reasonable costs” of returning home.  

Note that the termination is effective as soon as the USCIS receives notice, not necessarily the date the USCIS revokes the employee’s H-1B Visa.  Also, though an employer must offer to help pay for the employee’s return trip home, there is no requirement that the employer also pay for the costs of relocating the H-1B holder’s family or property.  Once a bona fide termination occurs, the H-1B employee is in unlawful status and therefore advised to return to his or her home country.  If a company has any questions about whether they complied with this requirement, they should consult their attorney.

Conclusion:

As detailed above, once an employer’s H-1B petitions are approved, it must be carefully monitored to comply with USCIS requirements.  A company’s attorney can alert the company of when USCIS notification is needed by consulting (1) immigration statutes, (2) Department of Labor (DOL) regulations, (3) case law, and (4) advisory memoranda.  Because of the complications that may arise, it is best for a company to err on the side of caution and immediately notify their attorney if they think that a change may be material.
The Law Offices of Shah Peerally has successfully handled numerous H1B cases including transfers. We will be glad to assist you with all your immigration needs.

The Law Offices of Shah Peerally practice exclusively in US immigration law and Canadian Immigration law (in collaboration with the Law Office of Massood Joomratty). The law firm is headquartered on 4510 Peralta Blvd, Ste 23, Fremont CA 94536. Ph 510 742 5887, email: info@peerallylaw.com Website: www.peerallylaw.com

The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.  Shah Peerally is the managin