EB-5: Time is Running Out To Invest at Current Levels

By Lum Law Group 0

In two months USCIS’s new rules on EB-5 investment go into effect. It is critical that persons who wish to invest to become US permanent residents search for real, viable EB-5 investments before the investment requirement increases from $500,000 to 900,000 for investment in a Targeted Employment Area (TEA), or $1 million to $1.8 million elsewhere.

On November 21, 2019 changes to the EB-5, or Immigrant Investor, program, will become effective. The amount required for an investor to invest will be $1.8 million (up from $1 million) or $900,000 (up from $500,000) in TEA areas. USCIS is changing how a TEA may be determined. This will affect how projects within cities like Los Angeles and San Francisco which can offer EB-5 investors investment at the TEA (lower) investment amount. Some projects that are allowed the TEA designation will no longer qualify. (See https://www.uscis.gov/news/news-releases/new-rulemaking-brings-significant-changes-eb-5-program).

USCIS has also announced that an investor, if approved, retains the “priority date” of his first filed I-526 application, even if he is required to change projects.

It is therefore important for any persons looking to obtain a green card under this program, find a viable project before November 21, 2019 to obtain the lower limits of investment. Investors must be sure that a project and the company/individuals behind the investment are credible.

With over 30 years of experience counseling clients in obtaining visas and permanent residence in the United States through investments, employment and other non-immigrant visas , Lum Law Group can assist you in all of these endeavors.

Lum Law Group can help you to find the best route through lawful immigration procedures. Please contact our office to schedule a free 30 minute introductory meeting.

What Can an Immigration Lawyer Do for Me? How Can an Immigration Attorney Help me?

By Jessica Suotmaa 0

In reading our online articles, you might think we’re suggesting you don’t need a lawyer for your immigration case.  After all, we tell you about the USCIS online services, we discuss new immigration policy changes, and we even explain how to prove your case. But this is not our intention. We do believe our services are of value, and we certainly do not believe our articles should be taken as legal advice.  Always contact our office directly, preferably by phone, to discuss your unique immigration case.

You may wonder wherein lies the value of an immigration attorney? How can an immigration lawyer help me? Why should I pay more when I can fill out the form myself? Here’s our why:

1. Legal Knowledge

While you may adept at googling information on the world wide web, an immigration attorney is trained in…immigration law.  An immigration attorney spends years studying in law school, and then graduates and continues to read additional books, government policies, and immigration court cases to find relevant information to help his or her clients.

Finally, where a paralegal may be trained in procedural tasks, an attorney is trained to think critically, to analyze your case, and to think like an adjudicator–in other words, the person deciding the outcome of your immigration case.

2. Legal Representation

When you do-it-yourself, you literally are on your own.  When you hire a paralegal to prepare things for you beforehand, you still have to present it by yourself in front of an immigration officer, ICE officer, or immigration judge. The paralegal cannot represent you.  They might be able to accompany you for moral support, but that is the limitation of what a paralegal can do for you.

An immigration lawyer can represent you in any and all of the above settings.  The immigration attorney can visit you in the detention center. They can accompany you for your immigration interview. Or they can appear before the immigration judge and speak on your behalf.

If you have doubts as to your confidence in representing yourself in important immigration matters, hire an immigration lawyer to do what he does best: help you.

3. Agency Experience

While not all attorneys have agency-specific experience, it’s important consider this quality when evaluating immigration attorneys. Choose competent, experienced legal representation.  Attorneys who have steadily grown in the same company, come from a family practice, or who just have years and years of experience will surely know the best practices for dealing with the government agency in questions.  How? From trial and error.  An immigration attorney with more years of experience will have had more cases than a new law school graduate or an attorney who doesn’t specialize in immigration.

When choosing an immigration lawyer, choose the one who knows because there was once he didn’t know. Don’t let your case be the guinea-pig.

 

Do you have questions about the complexities of your immigration case? Make an appointment to meet the experienced attorneys at Lum Law Group today! Call 626-795-8886.

 

 

form i-944 public charge

By Jessica Suotmaa 0

After finalizing the new Public Charge of Inadmissibility rule, United States Immigration and Citizenship Services (USCIS) has announced that new green card applicants will be required to file a “declaration of self-sufficiency”.  The not-yet-released Form I-944 is an additional requirement for all Form I-485 Application to Register Permanent Residence or Adjust Status submissions starting October 15, 2019.  In this article, we will examine the September 26, 2019 draft copy of the Form I-944, Declaration of Self-Sufficiency and its accompanying I-944 instructions.

Note: USCIS has not released the final version of the Form I-944 and Instructions to Form I-944 and the contents of this article is based on just one of many draft copies of the two documents. 

Who has to file a Declaration of Self-Sufficiency?

  • Any adjustment of status or green card applicant filing with a Form I-485;
  • Any non-immigrant category affected by the Public Charge rule, such as: H1-B, L-1, L-2, and H-4;
  • Any visa category affected b y the Public Charge rule, such as F-1 visa and OPT holders;
  • Any applicant filing for an extension of one of the above could be served a Request for Evidence (RFE) demanding a Form I-944

What do I need to prepare for the Form I-944?

The following information will be asked for on the form:

  • Basic: name, alien registration number (A number), social security number (SSN), etc.
  • Household: marital status, household members, household income, etc.
  • Financial: assets, liabilities, income, credit score, bankruptcy, etc.
  • Education: language skills, certifications, degrees, etc.
  • Employment: career prospects, work history, retirement, etc.
  • Health: medical conditions, medical history, health insurance, etc.
  • Public Benefits: use of discontinued use of public benefits, etc.

Now let’s break down each section to see what you’ll need to prepare for in terms of both information and supporting documents.

  • Basic information required on the form include any personal information already entered on your other USCIS forms, including the I-485, Application to Register Permanent Residence.  The only difference is that this form requires you to authorize the Social Security Administration (SSA) to verify your social security number.

Documents you may need: SSN card, passport, birth certificate, local ID, marriage certificate

  • Household information includes all members of your household, their basic information (A numbers), and any immigration benefits they are currently applying for or have previously received.  Household information can also include anyone who claims you as a dependent on their federal income tax returns.

Documents you may need: prior year tax returns

  • Financial information includes assets, liabilities, and resources for the household as a whole. This means anyone within your household will need to provide a list of their assets, liabilities, and resources.
    • Any income that is in addition to what was reported on your federal income tax returns needs to be further listed and supported with documentation. A good example might be child support payments.
    • If your household has failed to file an income tax return, you’ll need to provide an explanation.
    • If you earned income by working illegally without a valid work permit, you’ll need to provide an explanation.
    • Any income, debts, or losses from gambling will require additional documentation as well.

Documents you may need: pay stubs, W2s, prior year tax returns, court documents, W2-Gs, 1099s

  • Financial assets include real estate property, bank accounts, trusts, stocks, retirement accounts, etc.
  • Financial liabilities include loans, mortgages, car loans, credit card debts, student loans, etc.

Documents you may need: credit report, deeds, bank statements, stock/bond certificates, notes, bankruptcy documents, property appraisals, mortgage statements, lien releases

  • Education information includes your overall education history including any language certificates, occupational and vocational skill certificates, degrees, etc.

Documents you may need: high school diploma, bachelor’s/master’s/PHD degrees, transcripts, certificates, licenses, foreign degree evaluation

  • Employment information includes your current employment status, a complete work history, any occupational licenses/certificates/degrees, any current non-immigrant visa approvals, and plans for retirement

Documents you may need: Form I-140 Approval Notice, licenses, certifications, resume, W2s, recommendation letters, pension income statements

Health information includes your medical history and your medical insurance coverage.

Documents you may need: doctor’s reports, medical test results, vaccination records, health insurance verification letter, Form 1095-B, Health Coverage, Form 1095-C, Employer-Provided Health Insurance
Offer and Coverage Form 1693

  • Public Benefits information is a list of any and all public benefits you and your accompanying dependents have previously used, currently use, or plan on using in the future. These benefits can include: social security, medicare, section 8 housing, food stamps, general assistance, any benefit for institutionalization for long-term care at government expense, for example, Intermediate Care
    Facilities for People with Intellectual disability (ICF/ID), Nursing Facility (NF), Preadmission Screening & Resident Review (PASRR), Inpatient Psychiatric Services for Individuals Under Age 21, and Services for individuals age 65 or older in an institution for mental diseases, public housing, and even USCIS application fee waivers.

Documents you may need: documentation of any public benefit received, explanations/declarations explaining your situation

 

The Form I-944 is a free form with no additional fees that does not replace the Form I-864, Affidavit of Support, but is almost as lengthy. USCIS estimates the amount of time it takes to fill out a Form I-944 is 4.5 hours, but that’s assuming you already have all of your supporting documentation.  Submitting a form without sufficient documentation can lead to a denial based on insufficient evidence. Ensure you’re prepared for your application by gathering information now, rather than later!

Still have questions? Ask us what we, at Lum Law Group, can do for you!

 

 

 

Is my foreign-born child a US citizen?

By Jessica Suotmaa 0

On August 28th, 2019 the United States Citizenship and Immigration Services (USCIS) released a new policy manual update on derived citizenship for children. Generally, US citizenship can be granted to children born on US soil or to at least one US citizen parent. However, with the release of the new rule, The granting of US citizenship to children born under these circumstances will be further screened.

What is the biggest change?

The three highlights of this policy update is the clarification between US residence and presence; to establish the difference between US presence and temporary visits to the US, and the update how children living abroad with US government or military are no longer considered as residing in the US.

How could this affect me?

If you are a US citizen working abroad on US territory, such an embassy, or stationed abroad for the US government, it means your child does not automatically acquire US “presence”. US presence is required for establishing residence, a requirement for US citizenship.

Alternatively, if you are a foreign person who gave birth to a child while on US soil, your child may be at risk. The N-600 certificate of US citizenship requires sufficient proof of US presence.

What is considered proof of US presence?

Even US citizens residing abroad must prove they have sufficient US presence in order to justify their underaged children deserving of derived US citizenship. This means if you haven’t returned to the US in a long time, never really lived here permanently, or simply treat the US as more of a vacation spot than home, it’s possible your foreign-born child won’t be granted US citizenship.

This could also apply to foreign-born children of US parents who fail to obtain a copy of a Consular Report of Birth Abroad (FS-240) and thereby need to prove US citizenship by other means.

US citizens must show five years of US presence after the age of 14 in order to qualify.

US presence is best established with school records (transcripts), tax returns, and W2 income returns.

Contact Lum Law Group

Still have questions on what may constitute US presence? Ask an experienced immigration attorney today!

What's the difference between a refugee and an asylee?

By Jessica Suotmaa 0

In popular media the terms ‘refugee’ and ‘asylee’ are often used interchangeably. It’s difficult to tell the difference between seeking refuge and seeking asylum. After all, don’t they mean the same thing?

When it comes to the specific ways the terms apply in immigration, the answer is no.

In this article, we will explain the difference between a refugee, asylee, and asylum seeker.

What’s a Refugee?

Generally, a refugee is someone who has been forced out of their home country. The refugee is seeking refuge outside of their home country because they can no longer remain or return there.

However, in order to receive “refugee status” in the U.S., a refuge seeker must meet certain standards. These standards are dictated by Section 101(a)(42) of the Immigration and Nationality Act (INA), and are similar to the international Refugee Status Determination process (RSD).

Here’s what USCIS would require of a potential refuge seeker:

  • Refuge seeker must be outside of the U.S. at the time of application
  • Refuge seeker must’ve been persecuted due to the one of the following:
    • race
    • religion
    • nationality
    • membership in a particular social group
    • political opinion
  • Refuge seeker cannot be settled in another country
  • Refuge seeker must be inadmissible in the U.S. by other means

To apply for refugee status in the U.S., a refuge seeker must be referred to the U.S. Refugee Admissions Program (USRAP) for refugee status determination.

What “rights” do Refugees have?

Once refugees are granted “refugee status”, they have certain internationally recognized “rights”. Such rights include:

  • Right to their original property (in their country of origin, should they return)

Note: Voluntary return to a refugee’s country of origin to claim property can result in a loss of their third country residence allowance. So if you’ve been granted stay in a country where you didn’t apply for asylum, you can lose that right to stay when you leave to return to your country of origin.

  • Right not to be deported to their country of origin

Note: Although a refugee cannot be deported to their country of origin (where they were persecuted), they can be relocated to a different country.

  • Right to travel (but not to their country of origin)

Note: Refugees are encouraged to remain in the first country they arrive at instead of shopping for better refugee benefits, or risk losing their refugee status.

Who is NOT a Refugee?

The USCIS website specifies that a person who leaves his home country for a “better life” is not a refugee but an “economic immigrant”.

Also, those who are already in the U.S. seeking refuge for humanitarian reasons such as persecution by race, religion, nationality, membership in a particular social group or political opinion must apply through the asylum program.

Who is an Asylum Applicant?

Where a refugee is not granted permission to enter a country until they are approved through the refugee program, an asylum applicant is a person who applies for asylum status while in the country. Therefore, a migrant who feels persecuted can enter American soil or reach the U.S. border and request asylum. But, the key difference is that a refugee has been granted asylum before they entered the U.S. and an asylum seeker is claiming they are a refugee but is still waiting for the results of his or her application.

In most countries, asylum applicants do not have the same rights as refugees. They are not granted work permits, benefits, or the freedom to move freely within the country.  Asylum applicants must prove their case before they can become “asylees”.

Who is an Asylee?

An asylee is an asylum applicant who has been granted refugee status or “asylum”.

 

Do you have questions regarding your asylum qualifications or application? Contact our experienced asylum attorneys about the best way to present your application or most credible deportation defense case strategy!

3 Changes to the 2019 EB-5 Program You Need to Know

By Jessica Suotmaa 0

On July 23, 2019, the United States Citizenship and Immigration Services (USCIS) released the long-awaited update to the EB-5 investor program, the new EB-5 investor program modernization rules (“new rules”).  The new rules will go into effect beginning November 21, 2019, if Congress extends the program past the current expiration date of September 30, 2019.

So as long as you file before November 21, 2019, USCIS will review the petition with the old rules!  USCIS will not make a decision based on the following new rules if your Form I-526 Immigrant Petition by Alien Entrepreneur is filed before the new rules go into effect on November 21, 2019.

In this article, we will cover the five most relevant changes to the popular EB-5 program.

 

1. Minimum Investment Increases

Likely one of the most important issues for those interested in participating in the EB-5 program is the minimum investment requirement. The new rules require each investor to invest a minimum of US$900,000 in a targeted employment area (TEA) and US$1.8 million if not. Previously the amounts were US$500,000 and US$1 million, respectively.

$500,000        ->    $900,000

$1,000,000     ->    $1,800,000

It’s important to note that these figures will not go down, but will adjust to inflation with an increase scheduled for every five years.  This means the next minimum investment increase will occur in 2024.

Pro Tip: Lock in your lower investment thresholds by filing a complete I-526 petition by the November 21, 2019 deadline!

 

2. Targeted Employment Areas are Rural

Where previously the TEA of low employment areas were determined by the State, now they will be determined by Department of Homeland Security (DHS).  This means California can no longer decide which areas of high unemployment can be designated as a TEA.

In addition, the New Rules state that where previously towns and cities with 20,000 residents or more could qualify for TEA even if they were located within a Metropolitan Statistical Area (MSA). The New Rules would disqualify towns and cities within MSAs to qualify for TEA status.  DHS is specifically allowing rural towns and cities with 20,000 residents or more, struggling with high rates of unemployment to qualify for TEA status.

Pro Tip: If you’re looking to invest in an EB-5 project after November 21, 2019, be sure to check whether it will still qualify as a TEA. If your project is no longer in a TEA area, your minimum investment will increase from $500K to $1.8million.

 

3. Priority Date Retention

Previously, EB-5 investors with approved petitions would lose their priority date if they had to amend their petition. With the new rules, EB-5 investors can keep their original petition approval date for the calculation of their visa priority date.  This means EB-5 investors can petition with subsequent Form I-526s and not risk losing their priority date placement.

Pro Tip: Since not all EB-5 projects work out, secure your EB-5 visa by submitting multiple I-526 petitions and use the priority date for the earliest approval!

 

To avoid the above rules, be sure to file a completed I-526 application before the November 21, 2019 deadline. Not sure if you have a good project? Need an experienced immigration attorney to review your petition? Contact our office for more information on how you can participate in the EB-5 investor program using the old rules before it’s too late!

undocumented & deportable

By Jessica Suotmaa 0

Amid recent news on an increase in Immigration & Citizenship Enforcement (ICE) raids, many may worry about detainment. While California is immigrant-friendly, it doesn’t mean law enforcement won’t turn you over to ICE.  It also does not prevent federal agents from taking you into custody. If you’re undocumented and worry you might be detained or deported, then this article is for you.

We’ve already written about how employer’s can guard against on-site job raids. We’ve also referenced many resources for undocumented immigrants to learn about their rights.  You can always call us if you you have questions about your options or current immigration case. And we’ve discussed deportation and even waivers for inadmissibility. Now it’s time to talk go over precautions you can take to protect your family if you are at risk of deportation.

1. Memorize a phone number that’s not your own

We can all (hopefully) remember our own phone number, but do you remember the number of your emergency contact? How about your immigration attorney?

…Our number is 626-795-8886, by the way.

Be sure to remember at least one phone number of a reliable person whom you can call if you’re detained.  This phone number should belong to someone who is available or who at least has a voicemail set up with an inbox that is not full.

2. Assign your kids a guardian

If you have children, and this is especially true if they’re U.S. citizens or lawful residents, they will need a guardian when you’re detained.  Someone should know to pick up your kids from school, to take them home, or to stay in your home to care for them.

Someone should also be assigned to be legally responsible for them. Relatives can be informal guardians, but anyone can be given Informal Guardianship Authorization. This form would allow the guardian to enroll your kids in school, take them to the doctor, sign up for Medi-Cal, and other necessary items. Ask us about the form, or ask your school and medical professional what forms they offer.  Prepare the necessary paperwork and sign multiple copies so that everyone has one.

3. Give someone trusted access to your info

Does your spouse, mother, child, or other emergency contact have access to your home? Do they have a key to your house? Your car? Do they know where their legal documents are? Do they know who your attorney is?

Be sure to organize all your immigration documents, forms, and other supporting documents in an accessible place. If you have criminal records, legal documents from your home country, tax records, or any other important documents, place them in the same space.  Include any other “positive” documents about your American life, your family and children that may help your immigration case.  Ensure your emergency contact knows where your legal documents are stored.

4. Prepare your loved ones

If you have an alien registration number (A#), be sure to share that with your friends and loved ones. If you are detained and they need to find you, they need certain information about you.  Specifically, your full legal name (or names, if you have multiple), date of birth, and alien registration number. Share the Online Detainee Locator link with your loved ones.

Preparedness is important as it reduces stress for both you and your loved ones when you’re detained.

5. Know your rights

As an undocumented immigrant, you still have rights.

You have the right to silence. You have the right to tell the officer you do not wish to speak.

You have the right to speak to an attorney.

You have the right to privacy of your home and vehicle. You have the right to exit your home and meet officers outside (rather than let them in). You have the right to inspect a warrant to verify if an immigration signed it.

Don’t be afraid to ask for your rights!

what does administrative processing mean in immigration

By Jessica Suotmaa 0

When applying for a visa to the United States, many applicants worry about their “administrative processing” status.  Some think this means they are doomed for denial. Others are just confused as to why there is a delay.  In this article, we will briefly explain what administrative processing means in U.S. visa processing.

Background Check

The reason behind the status, “administrative processing”, is that your case needs to be forwarded to Washington D.C. for a background check.  Sometimes, the consular office will require a background check to process your visa. This is an extra step in the visa application process caused by either a database match or a trigger in your application or interview.

Database Match

The U.S. government keeps records of each visa applicant, and foreign visitor.  When you have a name, fingerprint, or date of birth that is similar to another individual on the “black list”, you will be further investigated.  This is also true if you have had any issues in the past, such as visa overstays, visa denials, or criminal arrests and convictions.  Sometimes your case requires further inspection because of the answers you put on your Form DS-160, but the reasons are endless.  It’s hard to say exactly what triggered the database match.

Processing Time

How long it takes to process your security clearance depends on the consular office you attended.  Some offices have processing times of 60 days, and others require more time. You can contact your local consular office (start by checking their website) for their administrative processing time.

Remember, the processing time for administrative review is outside the processing time of your visa. This means it is an additional time that is added on to the normal visa processing time.  There is also no way to expedite the process of administrative review.

To prevent further delays, comply with any document requests from the consular office as soon as possible. Remember, the time it takes for you to gather your information is outside the processing time.

If the processing time for your local office has passed, you can contact your attorney to see about inquiring on the status of your case with the consulate.

Processing Results

Does getting a notice for administrative processing mean your visa will be denied? No, it does not.  It’s one thing to know you have issues in your history that warrant a denial. It is another, to assume you will be denied for no reason. Overall, it is not productive to think of the administrative processing status as an instant denial.

Since a database hit is usually the case of administrative processing, there is no formal way to challenge a denial.  Even if the consular office  started the process because he or she required additional information to make a decision, it is still near impossible to appeal that decision.

If your visa has been denied after administrative review and you would like to speak to an attorney about your options, contact us directly.  We will review such cases on a case-by-case basis.

Unfortunately, you cannot determine whether your case will be forwarded for administrative review prior to applying.  If you have further questions, you can contact our office to speak to an experienced immigration professional!

 

What does it mean to sponsor an immigrant?

By Jessica Suotmaa 0

In applying for legal immigration status, there are so many forms and formalities that are necessary that we often get in the habit of just verifying basic information and signing on the dotted line. However, if you’ve been asked to “sponsor” someone, whether a family member, distant relative, or community member, you should know what it means.

Many people seem to believe that to sponsor an intending immigrant means to “vouch” for a buddy. As in, I know he’s good for his money; or I know he’ll work hard once he gets his work permit. But that is not what sponsorship means in U.S. immigration.

Declaration of Financial Support

Sponsoring an immigrant means you are their financial sponsor.  Think of it as hosting an au pair or an international student in your home. You are responsible for that person’s living expenses. You are responsible for that person’s medical expenses. That person does not have work authorization and you must provide them with food, shelter, and spending money.  You’re that person’s bank.

If you’re thinking to yourself that it’s OK, it’s only for a short while, think again. The United States Immigration and Citizenship Services (USCIS) website specifically outlines that immigrant sponsorship lasts until the immigrant becomes a U.S. citizen, or has clocked in a certain number of work quarters–usually lasting ten years.

So sponsoring an immigrant by filling out the Form I-864, Affidavit of Support and providing your tax records means you’re liable for that person’s expenses for up to ten years.

If you’ve ever wondered why the form is so detailed, and why you need to turn in your tax returns or financial documents, now you know it’s because you’re financially responsible for the immigrant. By proving you can afford to sponsor the immigrant, you commit to paying their bills. Which brings us to an important point, don’t let the immigrant become a public charge.

Read: What does Public Charge Mean? 

Don’t Sponsor a Public Charge

Let’s say you sponsor an immigrant and they end up going on welfare. They apply for public benefits, such as Medi-Cal and food stamps, becoming a “public charge”.  This shouldn’t happen because you vouched for that immigrant. You told the government that you will cover all of their costs, including any medical issues. As a result, you may have to pay back the government all the benefits the immigrant you sponsored received.

If an immigrant you sponsored receives any means-tested public benefits, you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency or the immigrant can sue you in court to get the money owed. (USCIS)

Not Everyone Can be a Sponsor

If you’re not directly related to the immigrant, you can only be a joint sponsor. Joint sponsors pool their resources with the main sponsor to support the immigrant. Joint sponsors have to meet the same requirements and are just as liable for the immigrant’s finances.

If your legal professional offers to help you find a sponsor, find a new one. If they say they can provide the affidavit for you for a set fee, don’t pay them.  They’re charging you for illegal practices and you’re the one who will be in trouble.

Read: How to Find a Good Legal Professional

If you’re not clear on what it means to be a financial sponsor, if someone’s asked to fill out the Affidavit of Support on their behalf, or if you have questions on the application process, contact an experienced immigration lawyer today!

Should I be worried about Social Security Administration's "No Match" Letter?

By Jessica Suotmaa 0

Starting March 2019, the Social Security Administration (SSA) has been sending out letters demanding employers to correct a discrepancy between names and social security numbers. This letter is called a “No Match letter” for short.  These “Employer Correction Request Notices” (ECRN)  were common before 2012. Under the “Buy American, Hire American” directive, the SSA has resumed sending out “No Match” letters to employers. The letter promotes hiring US citizens over undocumented workers.

In this article, we will address the two situations you may be in, the first where as the employer you receive a “no match letter”, and the second, where your employer informs you they have received a “no match letter” about you. Read on to determine how worried you should be about the ECRN, or no match letter.

What Employers Should Worry About

The New York Times reports that in California’s San Joaquin Valley alone, over sixty percent of the 39,978 employees employed by a total of 49 businesses have received SSA’s no match letters.  Clearly, a “no match letter” is not uncommon and even you could receive one as a small business owner with employees.

The first step is to realize that there are many reasons why you might be receiving that “no match letter”. Don’t assume receipt of the letter means your employee lied or is working illegally.  Here are a few of the legitimate reasons why you received a “no match letter”.

  • typo on your W2/W3 forms
  • typo on the I-9
  • employee name change
  • transposition of numbers
  • identity theft
  • Sometimes the letter is generated by a typo, a name change, or even identity theft.  This is one of the reasons SSA wants employers to cooperate.

The second step is to realize the consequences of a mismatch to you.  While SSA is not threatening you with a fine or penalizing late responses that exceed the sixty day window, that does not mean it won’t affect you later.

As an employer, if you’re withholding federal income taxes, social security, and medicare then you’re also having your employees fill out a Form I-9, Employment Eligibility Verification.  Part of being prepared for an Immigration & Customs Enforcement (ICE) raid or audit is having updated I-9 forms for all your employees, and having proof that you addressed all “no match letters” received from the SSA.

In other words, an unaddressed “no match” letter from SSA proves you were aware that your employee(s) were unauthorized to work or even illegally present in the United States.  To avoid the hefty fines of noncompliance with immigration laws, employers should address employees regarding their “no match letters”. Here’s what to do:

  1. Verify that it was not your mistake by checking your Forms W2 and W3 for the last seven years. If it is your mistake, prepare corrections/amended forms and submit to the appropriate location. Submit a copy to SSA and keep a copy for your records.
  2. Prepare a letter to your employee with a copy of the “no match letter” from SSA and mail it to their address. Keep a copy of the letter. Document responses, if any.
  3. Prepare a declaration for your employee to sign proving you had the discussion and they received a copy of the “no match” letter. Have the meeting with your employee, then give them a copy of the signed declaration while keeping the original. Send a copy to SSA.
  4. If your employee resigns or disappears, document the exact dates of your contact and their disappearance in their file.

If you have questions on how to address the “no match” letters, contact our experienced immigration and employment attorneys today!

What Employees Should Be Worried About

The purpose of providing your social security number to your employer is for the planning of your future. Your employer is required to withhold and deposit your taxes, social security and medicare withholding to your social security account. A mismatch means that you’re not receiving money that belongs to you. As such, SSA’s notification is actually a favor to employees.

If your employer notifies you of a “no match letter”, you should review your I-9 and contact SSA.

However, if you’re notified of a “no match letter” and you know exactly why, then you may have a problem.  Here are a few common ways a no match letter could be intentionally generated:

  • using a purchased SSN
  • providing a borrowed SSN
  • stealing a deceased person’s SSN
  • creating a made-up SSN
  • sharing one SSN with several people

If you’re misusing the system then understand that the consequences could include deportation.  Do not show false documents to your employer as this could mean trouble. While SSA is not currently sharing information with ICE, the records remain.  As such, it could come up later in the future.

If faced with immigration consequences, contact an immigration attorney for additional information. Remember, you have employee rights too!

Marriage-based Immigration Interview

By Jessica Suotmaa 0

Previously, we wrote about how to prepare for your marriage-based green card beginning from the moment you decide to marry your partner.  The question of what should be brought to your marriage-based immigration interview for I-130 Petition for Alien Relative, I-485 Application for Adjustment of Status, and I-751 Application to Remove Conditions of Permanent Residence is one of the most common questions we encounter with existing clients, new clients, and clients who come to us specifically for this matter.  While the specific documents can depend on your individual situation, as may be the need for interview preparation with an experienced immigration attorney, we have gathered a general list of items you may want to prepare to bring to your immigration interview below.

Romantic Love Story

America loves a good romance, and your interviewer will appreciate a clear love story supported by evidence.  If we prepared your immigration application, we will have painted a convincing love story for immigration, arrange your photos for you, attach all relevant evidence, and describe all the little details that make up your story. However, this does not mean that it is sufficient to bring our application package with you to the interview. In the end, even though we were hired to represent you, we are still a law firm.  We present evidence to the gatekeepers at immigration, highlighting points that will meet regulations and qualifications based on law.  The immigration officer interviewing you is not meeting you to hear our version of your story; they want to hear yours.

How you want to present your story depends on you. You could be tech savvy and create a slideshow presentation (but do bring your laptop so you can show it to the immigration officer). We’re not sure how tech friendly the immigration officer is, so we recommend “safe” options, such as a scrapbook, “love board”, or collection of love letters.

In the collection, include a variety of photos and present them in a chronological timeline to show the progression of your relationship.  Do not focus on staged photos from a pre-wedding shoot, wedding shoot, or other specific event.  Candid photos are important, as are photos with other people, family members, and pets or children.

If you have gone on trips together, visited distant relatives, or met personal milestones together, do remember to showcase those life events in the presentation of your love story.

Household Matters

Where many of our love-inspired couples fail is in the preparation of the practical, household matters.  This is especially true of younger couples who are not accustomed to keeping good records of their own personal transactions, let alone combined transactions.  Since we’ve already listed all the ways you can meet immigration’s expectations on a couple’s co-mingling of finances, our focus will be on how to present this information at the interview.

If it’s your first interview, bring a binder with all the original bills and account notices for your joint accounts.  Place them in order of newest to oldest, have dividers in place or separate binders for each type of account, and be sure you’re able to describe each type of account.  Do not rely on what your attorney organized for you, especially since by the time you go to the interview you should have new bills and notices.

Note: You must have joint accounts.

We know that these days most of us go paperless and we do not necessarily keep paper records in old-school filing systems, but for the purposes of your immigration interview, it will be easier if you have it all in black and white.

Community Involvement

Relationships do not happen in a vacuum, and as such immigration expects you to interact with your community as a couple.  This means you should have photos, witness statements, certifications, or other means to prove that you have been active in your community and proven that you are a couple.  This can be difficult for individuals who are less involved in their communities, for those whom are new to their communities, and for people who simply work or study a lot.  Regardless, it will be in your advantage to prepare photos of you and your partner in a community or other setting, whether work, church, family, friends, or organization, where it is obvious you are a couple.

Note: Do not place too much emphasis on group events and photos, especially if it is not clear from the photos that you are a couple.  This can be a red flag.

You can also have mutual friends, community members, pastors, roommates, or coworkers write witness statements declaring under oath that they are witnesses to your relationship and vouch for your sincerity.

Note: Witness statements must include the witness’ name and contact information in the event immigration attempts to verify their statements.

Conclusion

If you have prepared to present your romantic love story, your financial situation, and your community involvement for you interview, you are halfway there.  Lastly, know that the immigration officer will be asking you questions. If the officer wants, he can separate you and ask you questions individually.

What questions should you be prepared for? It depends on your individual situation, but know the basics for your love story, know what care you each drive, and if you’re brave, try answering the dreaded, “Why do you love him/her?”

 

If you have additional questions or are simply worried about your upcoming interview, please feel free to contact our office for help!

 

Satisfying the L-1 visa one year requirement

By Jessica Suotmaa 0

In November 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum on satisfying the one year abroad requirement for L-1 visa beneficiaries. This policy memorandum is internal to the agency and cannot be used to justify a beneficiary’s qualification for L-1 visa (L-1A and L-1B Temporary Intracompany Transferee).  Regardless, the policy does clarify many of the questions regarding the one year requirement. For your future reference, we have summarized the highlights of this recent announcement:

1. When does the one year period of employment abroad have to be met?

The one year work abroad minimum requirement has to be met on the day your petition is filed with USCIS.

For L-1, you are required to have worked for your company for a full year (365 days), continuously, within the last three years.  There cannot be any gaps in employment. You must have worked outside of the United States. Any business trips your company sent you on to the United States do not count towards the 365-day rule. Your company cannot petition for you before you have met the 365-day requirement.

2. Do my U.S. business trips count towards my one year requirement?

No, they do not.  If you have only been employed by your company for 365 days and you have made trips to the U.S, you do not meet the one year requirement.  The reason is that the time spent in the U.S., even if for business, do not count towards your one year requirement.  Business trips do not “break” your period of continuous employment abroad, but they do not add to it either.

For example, if today is February 1, 2019 and you began working for your company on February 1, 2018, but you took two trips to the U.S. in 2018: the first in July 2018 when you stayed for 14 days and the second in December 2018 when you stayed for 30 days.  On February 1, 2019, you do not meet the one year abroad requirement.  You will need to add the number of days you were in the United States to your total in order to calculate when you will meet this minimum requirement.  In this example, you would add the following:

February 1, 2018-February 1, 2019 = 365 days + 14 days + 30 days = 409 days

February 1, 2018 + 409 days = March 17, 2019

In other words, your company can file your L-1 petition after March 17, 2019.

3. What if I currently have H1-B or E-2 visa status with my company but I used to work abroad for the same company?

If you currently have H1-B or E-2 visa status, you still have to meet the 365-day foreign employment requirement. However,  your valid H1-B or E-2 temporary visa in the United States pushes back the “look back period” for foreign employment.

For example, if your company has obtained an H1-B visa for you for the past two years, from January 1, 2017 to January 1, 2019, but now your company would like to apply for your L-1 visa.  The “look back period” is usually three years from the date of the petition. However, since you are working for the same company and in a qualifying capacity (executive, supervisor, or special skill employee), your “look back period” will end the day you obtained your H1-B visa.  This means you will have had to accrue 365 days of foreign employment with your company from January 1, 2014 to January 1, 2017 instead of January 1, 2016 to January 1, 2019.

Please note that the H1-B or E-2 visa sponsor would have to be the same company as your L-1 sponsor.

4. What if my company sponsored my masters studies in the U.S. and now wants to sponsor my L-1 visa?

To meet the time qualifications for L-1 visa, you need to have 365 days of continuous foreign employment outside of the United States within the last three years.  The three-year period, or “look back period”, is not affected by your studies in the U.S.

What this means is that if you expect to graduate from your U.S. masters program in May 2019 and your company decides to prepare and file your petition on or around May 2019, then you will have had to have worked for that same company in a foreign country for 365 days between May 2016 and May 2019.  This period cannot include periods of time when you held a valid F-1 visa or were stationed in the U.S. It cannot include any “optional practical training” (OPT) that you completed with your company as the purpose of your stay as a F-1 visa recipient was to study, not work.  Any period in which you held a valid F-1 visa and were located in the U.S. cannot count towards your 365-day employment requirement.

5. What if I entered the U.S. with an L-2 visa and now want to change status to L-1?

Similarly to an F-1 visa situation, an L-2 visa recipient enters the U.S. as a tag-along to the L-1 visa recipient it is attached to and thereby is not authorized to work in the U.S.  This means that the three year “look back period” is not adjusted and your visa status is not exempt.  You would have to have accrued 365 days of valid foreign employment with your current company within the last three years in order to qualify.

5. What if I stopped working for this company or worked for another company for a while?

If you stopped working for a period of time, or you worked for an unrelated employer within the three year “look back period”, it is possible you do not have enough time to meet the 365-day time accrued working abroad requirement.

For example, if you were working for your company from January 1, 2014 to December 31, 2016, but then worked for another company in the U.S. or somewhere else in between, and then maybe stopped working for a while before your company decided to recruit you for your present position, you need to carefully calculate the total number of days you have worked for this company.  The three year look back period in March 2019 would extend until March 2016. Since you stopped working at the company in December 31, 2016, you would only have nine months of continuous employment within your look back period.  Even though you have worked for your company abroad for over a year, you do not have enough days to meet the one year requirement for L-visa sponsorship.

6. What does “continuous employment” mean in this context?

Continuous employment with your company is defined as nonstop employment for the same company. This means that you cannot have worked for your company for 4 months in 2016, taken a few months break, and then worked another 8 months later in the year. It does not matter whether the 4 months and 8 months of employment add up to 12 months. It also does not matter if they took place during your three year “look back period”.  Your 12 months of employment with your company must not have any gaps or breaks. You cannot work for an unrelated company in between and expect to add the time together for the one year requirement.

Please note that to meet this requirement you may have to produce proof.  Evidence of continuous employment can include employment contracts, employment visas (if relevant), and pay stubs.

 

Do you have additional questions about the one year requirement for L-1 visa petitions? Schedule an appointment or give us a call today!

10 questions to ask your immigration legal specialist

By Jessica Suotmaa 3

Whether you’re hiring an attorney, a law firm, or a paralegal to assist in preparing and filing your immigration applications and petitions, you’ll want them to take responsibility of your case. At Lum Law Group, many of our clients rely on referrals to find us. Our clients trust their cases are in good hands.  Many were burned by other attorneys, law firms, or paralegals pretending to be attorneys.

We know that not everyone can, or wants to, rely on a friend or family member’s recommendation for important legal matters.  We know the outcome of your immigration case can change the direction of your life.  We also know that not everyone can afford our services, and while we offer various payment plans for our trusted clients, even that can be too much for some.  As such, we have prepared a list of items to consider when choosing a legal representative for your immigration case. Consider the following even when only hiring an attorney to accompany you to an interview, a paralegal to fill out forms for you, or a law firm to handle your entire case processing.

1. Certifications

Certifications prove that a professional has met certain education requirements, passed tests, and maintained a certain level of knowledge to upkeep their certification.  Always check the professional’s certification online to ensure they are still valid.  An attorney should have valid bar membership in the United States.  A certified paralegal should have a paralegal certification or L.L.M degree.

2. Legal specialty

You wouldn’t hire a history teacher to teach your child math, would you? Similarly, you wouldn’t hire a tax attorney to file your immigration paperwork.  Every legal professional, even paralegal, has a specialty, or a slew of specialties that they are proficient in.  Don’t assume or expect them to be good at practicing every aspect of law.  Find a professional who specializes in immigration, preferably in the country you are immigrating from, with the situation (forms) you need to file.

3. Experience

Certifications are useful for determining a professional’s skill, but experience can trump titles.  Find a legal professional who is experienced and confident in what they do.  The difference in hiring someone who has filed over a hundred similar applications to a newcomer who’s only handled three cases like yours could be the denial of your case.

4. In-touch and Updated

The law is ever-changing, and so are the forms and requirements for each form. Ask the legal professional what they think about a recent change in immigration law.  Ask them about how a change might affect your situation. Ask them about cases they’ve done where new legal developments changed the course of their case.  Ask them how they have been preparing for upcoming legal changes.  You want a legal professional who is not only certified and experienced, but who also remains up-to-date on the latest immigration law developments.

5. Document Requirements

At the initial visit, your legal professional should be able to tell you what information and documents are required to process your case.  After a strategy session, the legal professional should provide you a list of items you need and follow up to promptly receive said documents and information.

6. Fee determination

In immigration, it’s common to have flat rates for various forms and appearances.  However, that doesn’t have to stop you from asking how the legal professional arrived at the fee estimation.  Are they charging more because they include other fees? Are they charging less because they will bill you for costs? Do you have to assist in the preparation of evidence?  Do you have to mail/file the forms yourself?  Are there additional fees they recommend?

7. Preparer signature

Much like tax forms, immigration forms also have a “preparer” section at the end, where a form filler can disclose their name, address, phone and fax numbers.  This is the section a paralegal or “accredited representative” would fill out.  An attorney will fill both that section and require you to sign a Form G-28, Notice of Appearance of Attorney. An attorney or paralegal who does not fill out this information is avoiding responsibility.

8. Accessibility

Does your legal professional have an office? Or are they meeting you in a public space? A borrowed office? A friend’s home? The reason this matters is because you need your legal professional to be available to you.  If you prefer email, do they respond to emails? If you prefer phone calls or text messages, are they responsive? If you prefer a messenger, do they offer this service as well?  Filing immigration paperwork can be a long and difficult process and it is important that your legal representative is available to assist you.

9. E-file with USCIS

Several immigration forms can now be filed online.  The benefits of filing online include automatic status checks, credit card payments, and in-app notices.  Attorneys and accredited legal representatives should have an online USCIS account for “representatives”.  The difference between you creating your own account and filing by yourself and a legal representative using their account to file on your behalf is that their account shows multiple cases/filings while yours will only show your case status.  Ask the legal professional whether they have an existing online USCIS representative account, and whether they are willing to e-file your application for you.

10. Post-filing Service

Sometimes we’re so relieved to get something done that we forget that just because it’s “done” doesn’t mean it’s over. After you file your petition or application, you’ll need to follow up.  It’s important to ask your legal professional how often they check the status of your case, how do they check it, and how often they will follow up with you.  Is there a designated case manager whom you can easily contact? Is there a portal you can login to and view notes on your case?

Most importantly, what happens if things don’t go well for your case?  What happens if there’s a Request for Evidence (RFE)? Do they charge extra? Will it be the same case manager, or does your case get reassigned? What happens if there’s a Notice of Intent to Deny (NOID)? Will the legal representative need to refer you to someone else? Can it be handled in-house? How often does this happen? What are your chances? And what if your case is denied? What will be your options then?

 

These are all factors to consider when deciding on a legal representative to prepare or process your immigration case.  While there isn’t necessarily anything wrong with your aunt’s best friend’s brother’s recommended attorney, don’t blindly rely on someone else’s opinion. Keep in mind that just because they paid for a billboard ad, doesn’t mean they’re the best fit for your situation. Last, but not least, don’t be fooled by a cheap sticker price only to be saddled by hidden fees!

Do you want to ask us these questions? We welcome them! Contact us any time and we’ll be happy to go through this list with you in-person!

3 New Changes for H1-B Filers in 2019

By Jessica Suotmaa 0

Here at Lum Law Group, we have already begun preparing H1-B petitions on behalf of our clients.  If you plan on filing this year, do not wait till mid-March (it might be too late!) Contact our office for answers and assistance on filing your H1-B petition this year!

On January 31, 2019, DHS has issued the  final H1-B ruling. on the anticipated H1-B processing changes.  On January 31, 2019, USCIS published the final H1-B ruling.

1. Having a U.S. Master’s Degree Helps

USCIS’ new “reverse selection order” will apply to the upcoming FY 2020 filing season. If you’re unsure as to what the word “reverse” refers to, here’s how the random visa selection used to work:

  1. Select 65,000 from a pool of advanced degree exempt “regular” bachelor’s degree holders.
  2. Select 20,000 from a pool of master’s degree holders.

Here’s how the current selection will work:

  1. Select 65,000 from a pool that includes both “regular” bachelor’s degree and advanced degree holders.
  2. Select 20,000 from a pool that includes the remaining master’s degree holders.

The selection order reversal will increase the chances of a advanced degree holder to “win” the H1-B lottery by an estimated 16%, and decrease the chances for a bachelor’s degree only employee to be selected.

2. Early Elimination via Pre-registration

The new pre-registration requirement will require the employer (company) petitioning for employees to first register the employee electronically.  The electronic registration will be quick and easy, requiring only basic information such as the employee’s name, citizenship, passport number, job title, and whether the employee has a U.S. master’s degree.

But, it will only be open for a limited period of time, possibly only 14 days (the minimum). During this time, petitioners can delete an inaccurate registration and resubmit, as well as edit a registration prior to submission.

USCIS will then select from pre-registered petitioners. What this means is that many will be rejected at the pre-selection process and not allowed to join the H1-B visa lottery selection.

USCIS states the purpose of pre-registration is to reduce the number of H1-B petitions it receives, screen for duplicates, and to reduce H1-B fraud and not for eligibility purposes. However, the inclusion of a “U.S. Master’s Degree” in the pre-selection process suggests USCIS may prefer U.S. master degree holders over other pre-registrations.

3. H1-B Filing More Affordable

The new rule goes in-depth on the cost analysis of the new implemented changes to H1-b non-immigrant visa processing. The report analyzes both agency savings and petitioner savings.  Where previously petitioners would have to hire someone, either in-house or external, to prepare Foreign Labor Certificate and the entire Form 129 – H1-B Specialty Occupation Worker, the pre-registration would reduce the cost of trying.  A failed pre-registration screening will result in the petitioner saving significant amounts of money in preparation fees and USCIS filing fees.

In addition, many small businesses who did not have the budget to apply for H1-B given it’s high-entrance cost and risk of failure can now more readily join the lottery.

 

Now that we’ve highlighted the three key takeaways from the new H1-B rule, you might wonder about premium processing? On January 28th, 2019, USCIS published a press release stating it will resume premium processing cap H1-B petitions for FY 2019.  Please contact us if you have any questions regarding this issue.

 

Is immigration affected by the Government Shutdown?

By Jessica Suotmaa 0

With the recent (partial) government shutdown, many are left wondering what will happen once the holidays are over and everyone is back to business. We know a partial government shutdown affects federal employees, but how does it affect you? To answer your questions, we’ve collected key points from a variety of sources (listed at the end).

If by “immigration” we mean whether the United States Citizenship and Immigration Services (USCIS) agency is affected by the partial government shutdown, then the short answer is “no”.  USCIS is not funded by the government budget; it operates on its filing fees (which you pay).

USCIS tweet re government shutdown

The exception and long answer to the above question is when it’s a separately funded program under USCIS, such as the EB-5 investor program.  To make it easier for you, here’s a list of what is affected by the partial government shutdown:

  • USCIS EB-5 Regional Center Visa Program: Expired and not renewed as of yet. This means USCIS and Department of State will not accept any new EB-5 applications until the program is reactivated.
  • USCIS Conrad 30 Waiver Program: Also expired and not renewed as of yet. This means USCIS and Department of State will not accept any new EB-5 applications until the program is reactivated.
  • USCIS Special Immigrant Religious Workers Program: The Eb-4 non-minister special immigrant religious worker program expired and is currently not active.
  • E-verify: Currently not funded. Processing of E-verify application halted. Employers are advised to use traditional I-9 forms and manually verify employment eligibility.
  • Customs and Border Protection (CBP): While CBP is considered an “essential” agency, any visa or immigration-related application submitted at the border could be affected. The processing of any applications is not guaranteed.
  • Department of State (DOS): While DOS has not received funding as of yet, it too operates on fees and will actively process visas and passports as long as it still has “reserves” left.  Check with your local passport office to ensure it is not affected by a federal building shutdown.
  • Immigration Courts: As with previous furloughs (AILA resource), Immigration Courts handling non-detained immigrant cases will be closed, while Immigration Courts handling detained immigrant cases will continue to process. Details regarding exemptions from furlough as released by the Department of Justice are as follow:

“Executive Office for Immigration Review: Excepted employees are needed to process all immigration cases and appeals involving detained aliens, including criminal aliens; provide Headquarters oversight of excepted functions; provide administrative support for excepted functions; and preserve jurisdictional viability of discrimination cases within the Administrative Law Judge function”

 

Do you still have questions regarding the partial government shutdown? Or do you have questions regarding your immigration status? Contact our office to speak with an experience immigration attorney today!

How do you prove good moral character?

By Jessica Suotmaa 2

For the purposes of immigration, the United States Citizenship and Immigration Services (USCIS) defines “good moral character” as “character which measures up to the standards of average citizens of the community in which the applicant resides“.   A closer look at the Immigration and Nationality Act (INA) Section 101(b)(f),  which forms the basis of the policy guidance, tells us everything that is not good moral character.  In other words, USCIS has not clearly defined good moral character.

Whenever policy manuals lack a clear definition, it is up to you to prove you are worthy of discretion.  The person who reviews your case, whether an officer or a judge, can exercise discretion. This means they have the power to decide in favor or against you.  It is then up to you to provide enough evidence to convince them you are deserving of the benefit you desire.

Exceptions exist. For example, if you have been convicted of a crime, if you gamble for a living, if you are a “habitual drunkard”, or had an “extramarital affair which tended to destroy an existing marriage“.

If at this point you’re feeling pretty confident about your chances, note that the absence of something does not automatically mean the presence of something. The burden of proof is still on you.

Who needs to prove “Good Moral Character”?

Usually when we think of “good moral character”, we think of Legal Permanent Residents (green card holders) who want to naturalize and become U.S. citizens.  If this is you, then be prepared to provide five years worth of history.

Other situations in which we’ve had to prove “good moral character” includes removal defense, e.g., if you want to qualify for Cancellation of Removal; extreme and unusual hardship waivers (I-601, I-212), Violence Against Women Act self-petitioners (VAWA, I-360), and any request for discretionary relief.  We have prepared requests for discretionary relief with Requests for Joint Motions, Prosecutorial Discretion (PD), and in Immigration Court when we request the Immigration Judge to exercise PD and adjust our clients status in court.

There are certain instances when submitting evidence of good moral character does not help your case, e.g., late-filed asylum applications. If you’re not sure if you should provide proof of your good moral standing, consult an immigration attorney.

How do I prove I have a clean record?

If you know you have never been arrested or convicted of any crime, including DUIs, gambling mishaps, or domestic violence, then all you have to do is send in proof.  You might think immigration is the government, and the government has all your records, but it doesn’t matter. The law states that you have to submit proof of your eligibility, which USCIS will cross-reference with government records.

To do this, we recommend our clients to obtain the following:

  1. An Federal Bureau of Investigation (FBI) background check;
  2. A clearance letter from every location you have lived in over the past 5 years (minimum).

An FBI background check request for personal use requires a simple form and your fingerprint “card” from a live scan location. If you google a local live scan location nearby and ask for an “FBI” background check, they know what to do.  Some locations will even send the request in for you, but if not, you can fill out the form and mail it out with a money order or check. Keep in mind the FBI background check can take up to 12 weeks to process.

A “clearance letter”, sometimes referred to as a “police clearance letter”, used to be obtained from the local police department, but many departments, such as Los Angeles County, no longer provide them for USCIS purposes. Instead, you can obtain a “criminal clearance letter” certifying you have no criminal record from California Department of Justice (DOJ) by calling (916) 227-3822.

If you were living abroad, or are currently in a foreign country, you would need to obtain a Certificate of Non-criminal Record from your country of residence.  The official Travel.State.Gov website lists the name of the necessary document from each country, and which agency to obtain it from.

How do I show old records?

If you have prior arrests or convictions, you will need to provide certified copies of all related documents. This could include police reports from the local precinct documenting the arrest, certified court records, expulsions, and documents verifying completion of parole or community service.

You must submit certified original copies of all documents.

How do I counter negative counts on my record?

When evaluating for discretion, the government weighs the negative against the positive.  Imagine a scale where your negative history weighs three times more than each positive act.  How can you even the scale?

It’s difficult, but not impossible (depending on your individual situation).  We recommend you seek legal representation in assisting you to determine whether or not you are eligible for the relief you seek.

Without examining the details of your case, we can tell you that you would need to have done more good things, be a valuable member of your community, and provide more evidence than a person who does not have a negative history.  These “good things” can include: formal declarations and witness testimonies from you, your friends/neighbors/clients/employers/colleagues, volunteer records, charitable contributions, community participation, and awards of recognition.

What can I do to prepare for future applications?

Now that you know that proving good moral character is not just about avoiding trouble, but also about proving you’re a good person.  The problem many of our clients face is that it’s easy to get in trouble, and those records are usually readily available to be found, but evidence of good deeds often go unnoticed.  Our clients don’t remember every fundraiser they participated in, are not formally in any organization, and feel embarrassed to ask for declarations from their community.

We know it’s difficult, and if it were our case, we’re not sure we would be able to meet USCIS’ 30 day deadlines either. However, if you know you want to naturalize one day, or you have that mishap that happened a long time ago, then let this be your reminder: start today.  Don’t get your FBI criminal summaries and clearance letters just yet, but start keeping track of your time.  Join organizations, make connections, participate in fundraisers, and volunteer on the holidays.  Each time you volunteer, ask for a letter from the organization or fundraiser. When you leave a job, ask for a recommendation letter. Helped out a friend? Ask for a favor.  Remember, the more diverse your proof, the less room for denial by discretion.

 

Do you still have questions on good moral character? Contact our experienced immigration lawyers today!

What does public charge mean?

By Jessica Suotmaa 0

We have noticed conflicting information regarding the recent proposed changes to the existing public charge inadmissibility grounds. To read the actual notice published on October 10, 2018, the Notice of Proposed Rulemaking, from United States Citizenship & Immigration Services (USCIS), please click here. We hope this article will clarify the key questions our clients ask us regarding the current public charge policy, the proposed public charge rule, and how the changes may affect their applications, requests, and motions for adjustment of status.

What does “Public Charge” mean?

A “public charge” is a person who may become dependent on government handouts based on a number of factors, such as whether the person has already received government assistance.

The government determines whether or not an alien will become a Public Charge by considering the following:

  1. Whether the alien currently receive government cash assistance;
  2. whether the alien have received government cash assistance in the past;
  3. the alien’s age;
  4. the alien’s health;
  5. the alien’s family status;
  6. the alien’s assets;
  7. the alien’s resources;
  8. the alien’s financial status; and
  9. the alien’s education and skills.

When does “public charge” inadmissibility matter?

For immigration purposes, “public charge” applies when USCIS has to determine an alien’s admissibility, which can happen in two situations:

  1. When the alien applies to enter the United States;
  2. When the alien applies to adjust status to permanent residence (green card)

The “public charge” inadmissibility does not apply for naturalization purposes (citizenship applications).

What counts towards making one a “public charge”?

Here are a few key factors that count toward whether an alien is considered a public charge:

  • Government cash assistance for the alien;
  • Government cash assistance for the alien’s family if the alien’s overall household income is below Federal Poverty Guidelines;
  • Supplemental Security Income (SSI), such as:

What government benefits do not count towards “public charge”?

USCIS outlines the following non-cash programs as supplemental to your existing income, and therefore do not count towards making an alien a “public charge”:

Cash benefits that you earned also do not count towards public charge. Examples of earned cash benefits include social security benefits, unemployment benefits, government pensions, and veterans’ benefits.

But I’m a refugee/asylee and have no money–will I be denied for being a “public charge”?

USCIS states that the public charge inadmissibility grounds do not apply to everyone and that certain groups may be allowed to enter or adjust status despite falling under the “public charge” determination. These groups include:

  1. Refugees;
  2. Asylum applicants;
  3. Refugees and asylees applying for green cards;
  4. Amerasian Immigrants;
  5. Anyone with approved relief under CAA, NACARA, HRIFA;
  6. T-visa applicants;
  7. U-visa applicants;
  8. T-visa holders trying to adjust status (green card);
  9. U-visa holders trying to adjust status (green card);
  10. Applicants for Temporary Protected Status;
  11. Certain applicants under LIFE Act Provisions.

What if I am in removal proceedings (immigration court)?

The current regulations for determining whether an alien in removal proceedings is a public charge are more strict.  The Board of Immigration Appeals (BIA) has determined that inadmissibility based on public charge is based on the “totality of the alien’s [financial] circumstances at the time of […] application.”

In addition, aliens in removal proceedings can be ruled as public charges if any of the following circumstances apply:

  • mental disability;
  • physical disability;
  • advanced age; or
  • other fact “reasonably tending to show that the burden of supporting the alien is likely to becase on the public”

What are the proposed changes to the existing public charge grounds?

The impact of the proposed rule is twofold:

  1. It would tighten the way the government determines whether you will ever become a public charge;
  2. It would make it more difficult for certain individuals to obtain visas to enter the United States.

For any non-immigrant alien who is already in the U.S. and who may be considered a “potential public charge”, the proposed changes will disallow any extension of stay in the same visa category, hinder them from changing to another non-immigrant visa classification, and prevent them from adjusting their status (green cards).

How will the new rule be more strict on government benefits?

The new proposed rule is less relaxed when it comes to the receipt of benefits.

First, it counts “easily monetized” non-cash benefits as cash benefits, which means it will include SNAP/food stamps, rental assistance, and Section 8 vouchers among others.

Second, it limits the total amount of cash benefits a household can receive within 12 consecutive months to 15% of the Federal Poverty Guidelines.  For example, in 2018 15 percent in a household of one is $1,821, so if an alien were to receive more than $1,821 in a year, then that alien would fall under “public charge” and be ineligible for adjustment of status or admission.

Third, regarding non-cash benefits that are not “easily monetized”, such as Medi-cal or Public Housing, the new rule limits the number of months to 12 in a 36 month period (non-cumulative). This means that if an alien has Medi-cal for more than one year within a three year period, they would be considered inadmissible and ineligible on the grounds of public charge.

Fourth, the proposed rule introduces a new standard, which is the combination of benefits. If an alien is likely to receive a cash or “easily monetizable non-cash benefit” in addition to a non-cash benefit for a period of 9 months or longer, then the alien is automatically considered a public charge.

Finally, the new proposed rule will carefully consider the affidavit of support (I-864) when required in an alien’s application.

What does the new proposed rule NOT do?

The proposed rule does not affect the benefits of dependents or other household members. Any cash benefit for the alien’s dependents would not count towards the alien’s household income.

Certain benefits are also not considered, such as Head Start, national school lunch programs, foster care and adoption, emergency medical assistance, and disaster relief.

What other factors will the new rule consider for public charge?

USCIS states that the following “weigh heavily” in finding an alien is likely to become a public charge:

  1. The alien is not a full-time student and work authorization (work permit) but cannot show current employment.
  2. The alien does not have a good work history.
  3. The alien does not have the experience or training necessary to show “reasonable prospect of future employment”.
  4. The alien currently receives, is certified, or has been approved to receive one of the public benefits above the allowed threshold;
  5. The alien has received one or more of the public benefits above threshold within the last 36 months;
  6. The alien has a medical condition that is likely to require extensive medical treatment or institutionalization that will interfere with the alien’s ability to provide for himself;
  7. The alien has a medical condition that requires extensive medical treatment and it seems unlikely he will be able to afford private health insurance;
  8. The alien has previously been found inadmissible or deportable based on a public charge.

What will prevent me from being considered a “public charge”?

To prove that you are not at risk of becoming a public charge, you can prove that you have sufficient financial assets, resources, and support amounting to at least 250% of the Federal Poverty Guidelines for your household size.

Alternatively, you can prove that you are currently working and have an annual income of at least 250% of the Federal Poverty Guidelines for your household size.

For your reference, for a household of two, say husband and wife, the alien would have to earn at least $41,150 (individual, not combined income). For a household of four, say husband and wife with two kids, the alien would have to earn at least $62,750. For a family of six, say husband and wife and one set of grandparents, the alien would have to earn at least $84,350.

When does the new rule go into effect?

The new rule is still “proposed” (and not “final”), and will be published in the federal registry by the end of the year.  After which, it will be open for “comment” for 60 days.  It is possible that adjustments will be made to the rule, or that it will not pass.

How to Handle an Immigration Employer Site Visit

By Jessica Suotmaa 0

If you’re an employer with employment-based petition(s), such as the Form 129 Petition, for your employees, you might find yourself face-to-face with audit officers from the Fraud Detection and National Security (FDNS) department.  FDNS, or a third-party inspector, conducts site visits on behalf of United States Citizenship & Immigration Services (USCIS) to combat L-1 and H1-B fraud, among others.

Often, the visit begins with a phone call to verify the company’s information.  If you have suspicions regarding an upcoming visit, or you receive advanced notification (rare), do contact your legal counsel immediately.

An Inspector Calls

When an inspector shows up and states they’re visiting regarding an employment-based application, always ask for identification. Note the inspector/officer’s name or ask them for a business card. If you have legal counsel, call them and inform them of the situation. Any interview or discussion with the inspector can take place with your counsel present, or present on the line (conference call/speaker phone).

The site visits can take place at any time of day, during business hours. Typically, the visit will last from 15 minutes to 1 hour. The best way you can be prepared for a site visit is to ensure your front desk personnel are aware of the possibility of an immigration inspection.  Your front desk staff should be well-trained and know how to answer the phone, who works in which department, what each person’s title is, and who to contact if an immigration inspector calls.

Inspecting the Business

During a site inspection, you may be asked the following:

  • to procure documents for review
  • to speak with the inspector
  • to speak with whomever signed the petition (if not you)
  • to allow your employee (beneficiary) be interviewed
  • to give a tour of the office
  • to show the inspector the beneficiary’s workstation/office

New office L-1 petitions should be especially careful as to whether they’re current office, employee, or job requirements meet the hopeful specifications in their initial applications.  FDNS often inspects L-1 petitioners with new offices due to their lacking business plans, confusing organizational structures, or managers who wear too many hats (in other words, beware startups!) Inspectors will pay close attention to whether your employee is performing the work described in your petition, possibly asking multiple people to describe their job title and responsibilities for possible discrepancies.

Inspecting the Employee

The beneficiary of the employment-petition (your employee) should be able to answer all questions relating to his or her application truthfully. In other words, he or she should know what was inputted, and be able to repeat the facts correctly. The inspector will ask for a description of the employee’s…

  • day-to-day job duties
  • academic and employment qualifications
  • terms of employment
  • working hours and total work week
  • compensation and pay dates
  • manager’s information
  • the names and titles of people with whom the employee collaborates
  • the details of recent work appraisals.

In addition, the employee should have on hand the following:

  • valid identification documents
  • business card for your company
  • recent pay stubs
  • copy of LCA
  • latest Form W-2

If for some reason you do not have adequate information on hand, you can request an extension, or a second meeting with the inspector.  This would be appropriate if a certain staff member handling the affairs is not present, such as your immigration person, the HR manager, or in-house counsel.  If you do not have the requested documents and need more time to produce them, you can ask for an extension, a follow-up visit, or for USCIS to issue a Request for Evidence (RFE).

The Inspector’s Verdict

While you may try reading the inspector’s expression as they exit the door, keep in mind it’s not a guarantee of the result. The inspector will not tell you onsite whether you have “passed” the inspection. The only way you’ll find out if the inspector found your credible, and your petition valid, is via the mail you receive from USCIS.

If the site visit was to the inspector’s satisfaction, then the petition will be approved. If the inspection was not satisfactory, USCIS can issue an RFE for additional evidence, deny the petition, or even rescind a prior approval (often in the case of L-1 extensions, especially if the initial L-1 was a blanket approval).

 

If you’re expecting a site visit, interested in extending an existing L-1 visa, or petitioning for a new one, please contact one of our experienced attorneys for a qualified answer.

How to ace your L-1 visa interview

By Jessica Suotmaa 0

If your employer has successfully applied for your L-1 employer visa, you may be scheduled for an interview at the nearest U.S. embassy/consulate. Whether you have experience interviewing for a US tourist visa and know the drill, or it’s your first time and you’re incredibly nervous, we have tips to help you better prepare for what to expect.

Be Prepared

Nothing builds confidence like good preparation, and knowing what to expect at the interview is key.  If your company hired an external company to prepare your L-1 visa application, be sure to obtain a copy of the full application, any supplemental documents/evidence that was submitted, and any issues that may have arisen in the process.  Review the file thoroughly and know that there may be questions directly relating to your application.

If you don’t know where to start asking questions, be sure you know the organizational structure of your local company, where your local company stands in relation to the larger company, and how the U.S. subsidiary company is structured.  You should be able to comfortably place yourself in the organizational chart and explain all roles both above and below you.

Be Confident

The consulate or embassy can be a stressful place, depending on where you’re located.  Some locations have such high security that you cannot bring anything with you to keep you occupied, or for additional support, and other locations are much more relaxed.  Certain locations may be crowded with long lines and heavy waiting with random people, which can affect your stress levels if you’re not careful.  Be aware of why you’re there, ignore everyone around you, and most importantly, remember that the denied individuals in front of you will not affect your interview.

Be Truthful

While we encourage every applicant to be confident, we don’t encourage our clients to lie.  Be prepared, know your company and your role well, and answer honestly. If you make a mistake, apologize, correct yourself, and continue. Do not over-explain. Always stick to answering the question and follow up when necessary, but do not go on tangents providing unnecessary information.

Tip: If a question has multiple questions in one, think of them as A), B), and C) stems. Make a mental note, repeat the mental note to the interviewer, and then answer the questions in the order they were asked.

Example:

What is the process in your company to hire and fire an employee and have you had the opportunity to hire or fire anyone before? If so, when did you last fire someone?

A) Company’s process of hiring and firing employees

B) Have I hired/fired anyone?

C) When did I last fire someone?

Then you’d answer: “So you’re asking me for the (A) company’s process for hiring/firing employees, (B) whether I have hired/fired anyone in my present role, and if so, (C) when I last fired someone?” And then proceed to answer with details that directly address the questions.

If you can, we recommend preparing yourself well by playing out the interview at home via role play, or participating in a mock interview with your HR person. If you work for a large organizations with interview preparation sessions, role play sessions, or information sessions–do participate in them. If not, try asking HR if they can prepare you, about previous L-1 candidates, and what HR can provide you to study in preparation for the interview.

 

If you have additional questions about interviewing for an employment-based visa interview at the consulate or embassy, or immigration questions in general, please contact our office and we would be happy to help you.

What is form 220b, Order of Supervision?

By Jessica Suotmaa 2

The form 220b is an “Order of Supervision” is a detailed form with instructions on when, how, and how often you have to check in with Immigration and Customs Enforcement (ICE).  The Order of Supervision is handed out to aliens who are released from detention, released from custody, or who are low-risk and therefore not taken into custody as part of the Intensive Supervision Appearance Program (ISAP).

To be “under an order of supervision” is similar to being “on parole” in that the alien who receives it is “charged” with something (usually a crime, such as “unlawful presence”) and “ordered” to obey certain orders.

The Form 220b is for aliens who are in custody or have been ordered removed by an immigration judge during their removal proceedings.

The Order of Supervision is a privilege, or “conditional release”, offered by the government due to their own inability to deport, remove, or detain the alien, thus allowing the alien “to be at large”.

The first page shows how certain conditions apply, such as:

  • To appear when requested at a time and place specified
  • To appear for medical or psychiatric examination if requested
  • To provide information under oath re: nationality, circumstances, habits, associations, and activities deemed appropriate
  • To not travel outside a specific geographic area for more than 48 hours without first having notified ICE with a list of dates and places for “proposed travel”
  • To notify ICE of any changes in employment or residence within 48 hours
  • To report to ICE in person at the designated office
  • To assist USCIS with obtaining any necessary travel documents
  • …and anything else that may apply in your case

The second page has the following:

  • a photo of the alien
  • the alien’s finger print, and
  • a record of each “report” to ICE (date, time, location, officer)

This page must be brought to each visit. Do not lost it.

On the third page, there is a list of additional conditions that may apply in your case, such as:

  • no association with criminals or gang members
  • registration with a substance abuse program and provide ICE with proof
  • registration in a sexual deviancy counseling program and provide ICE with proof
  • registration as a sex offender with the appropriate agency
  • no criminal activity
  • report to parole or probation officer as required within 5 business days
  • follow all mandated reporting and supervision requirements as outlined by the parole or probation officer
  • follow any prescribed doctor’s orders, whether medical or psychological, including taking prescribed medications
  • make good faith and timely efforts to obtain a travel document and assist ICE in obtaining a travel document
  • submit travel document application to all appropriate embassies and consulates and provide ICE with proof of receipt
  • provide ICE with copies of any and all correspondence related to travel document applications from the embassy or consulate
  • contact the embassy or consulate within 21 calendar days to follow up on application
  • comply with any request from embassy or consulate for an interview and make good faith efforts to obtain travel document
  • participate in a supervised release program

It’s important to note that any violations to the terms checked in the Order of Supervision will transfer your case from the “alien monitoring program” to the Detention and Removal Operations (DRO) program.

Once in the DRO program, ICE will notify the alien re: violation and request an appearance.  If the alien does not check in, then “the case will be referred to the local and fugitive unit for immediate action” where the fugitive unit will “locate and apprehend the subject”.  Meaning an “unlawful alien” or illegal immigrant is upgraded to a “fugitive” status where “fugitive operations” can commence.

Contact Lum Law Group with any questions you may still have on the form 220b, Order of Supervision.

References:

ICE Policy Memo: Eligibility Criteria for Enrollment into the ISAP and EMD Programs

http://www.ice.gov/doclib/foia/dro_policy_memos/dropolicymemoeligibilityfordroisapandemdprograms.pdf