Kennedy's Immigration Law Report

National Spotlight on Short-Comings of H-2A Visa Program

Austin Kennedy — Wed, 05 Oct 2011 09:55:30 -0600

The H-2A visa program allows U.S. employers to hire workers from specified foreign countries to perform temporary agricultural labor in the United States. At first blush, the program appears simple enough. In reality, the program is complex, frustrating and expensive for employers to utilize. Today, the New York Times sheds light on these frustrating circumstances in an article which highlights the pinch felt by the so-called H-2A farmers.

Clients routinely tell me that they believe the H-2A program's onerous requirements drive employers away from the program and toward more high-risk labor sources. As the above-referenced article highlights, this reaction is a simple matter of cost and market economics.

For starters, in Iowa an H-2A employer must pay his workers at least $11.03 per hour. This, however, is only the tip of the employer's cost iceberg. In order to be approved to bring these workers into the country, the employer also needs to pay for and obtain worker's compensation insurance which covers the farm laborers. In addition, the program requires the employer provide all workers with three meals per day or the meals' financial equivalent. In addition, the program requires that the employer provide workers with room and board, which must be inspected and approved well in advance of the agricultural season. The employer must pay for the employees' travel from their home country to the U.S., and back again once the work is complete, while also paying for transportation to and from the worksites on a daily basis. Finally, the H-2A employer typically pays an attorney to navigate the maize of legal requirements necessary to bring the workers into the country in time for the agricultural season. When the cost-tallying is done, most farm-based employers understandably conclude they cannot afford to participate in the H-2A program.

The NYT's article highlights farmers who attempted to utilize fewer H-2A employees this year, largely due to the program's costs, and who also tried to replace the foreign workers with U.S. workers. One such farmer witnessed twenty five of his local hires leave the worksite after the first six hours of work. Even with historically high numbers of unemployment in the U.S., farm-based employers are still struggling mightily to locate affordable and reliable laborers, and in most cases, the H-2A program is not an affordable fix.

When Can an Employer's Use of Subcontractors Still Lead to Liability?

Austin Kennedy — Thu, 17 Feb 2011 13:08:50 -0600

It's no secret, chief among the many perks from an employer's perspective regarding the use of subcontractors is the fact that an employer is not required to verify an independent contractor's employment authorization documents through the I-9 process. By extension, most employers assume that they don't have to worry about the ICE man knocking on their door, and the world of potential civil and criminal penalties associated with such a visit.

Unfortunately, in far too many instances this assumption is dangerously incorrect. In fact, according to the law of the land any person or entity who knowingly uses a contract, or subcontract or exchange entered into, renegotiated or extended after Nov. 6, 1986, to obtain the labor or services of an alien in the U.S. knowing the alien is unauthorized to work will be considered to have hired the alien for employment in violation of U.S. law.

In other words, an employer's use of subcontractors is not a guarantee of immunity from immigration-related concerns, if the employer has reason to believe the workers lack proper authorization or if there is not a true independent contractor relationship in place. Merely labeling a worker an "independent contractor", or utilizing boilerplate contractual language to the same effect is not going to save the employer's day. In the near future we'll further explore the question of when an employer may be at risk for "knowingly" hiring unauthorized workers who were allegedly independent contractors, and also take a look at the way this area of the law factored in to the ICE raids at WalMart in 2003.

Does an Employer Have to Verify the Employment Authorization of Independent Contractors?

Austin Kennedy — Thu, 17 Feb 2011 10:07:28 -0600

The deceptively short answer to this question is "No." First, the rule of law: Independent contractors are one of the three categories of workers exempt from the Form I-9 verification requirements. The other two categories of workers exempted from the I-9 requirement are 1) employees hired before Nov. 7, 1986; and 2) casual domestic workers who perform sporadic, irregular, or intermittent service in private homes. Now comes the complex reality of the situation--while an employer does not have to verify the employment authorization of independent contractors or laborers provided by an independent contractor, employers may NOT use independent contractors in order to circumvent immigration laws. An employer can still be found liable if the employer has constructive knowledge of the unauthorized employment. For more on this timely and important topic, please see my next post.

Free Webinar: Achieving Lawful Permanent Residency Through the Labor Certification Process

Austin Kennedy — Tue, 25 Jan 2011 09:17:57 -0600

We here at Brick Gentry, PC, have an on-going in-house Continuing Legal Education (CLE) program, whereby all the attorneys take turns presenting on a different legal topic each month. In addition to conveniently earning yourself a handy CLE credit, the in-house program is great because it helps you become aware of your colleagues' areas of speciality and brings to light interesting cross marketing possibilities that might otherwise fall to the wayside during a hectic work week.

In December I presented a CLE entitled "The Employment-Based Path to Lawful Permanent Residency in the United States Through the Labor Certification Process". Despite the clunky (albeit descriptive!) title, the CLE was very well received and a number of partners suggested that I post it as our firm's first free webinar. We hooked up with Andrew B. Clark, who writes a cool marketing blog here, and Andrew really added a tremendous production value to the presentation I had written, the end result of which you see and can view and listen to below this very post!

By way of a brief introduction, I should note that there are a number of commonly acknowledged ways someone can immigrate to the United States: 1) through a family member; 2) as an asylee or refugee; 3) through the visa lottery system; 4) through the EB-5 investment program (more coming on this soon); and finally 5) through an employment relationship. It is this last category, the employment relationship, that serves as the focus of the webinar below. More specifically, this webinar speaks to a situation where a U.S. employer has a valuable foreign national employee and the employer wants to be able to retain the foreign national employee in the U.S. on a "permanent" basis. The most common way of helping this employee remain in the U.S. beyond their temporary status is through the labor certification process. For a whole slew of additional details, see below! And please keep an eye in the future here for additional webinars from Brick Gentry, PC.

Brick Gentry P.C. – Labor Certification Presentation – Webinar January, 2011 from Brick Gentry P.C. on Vimeo.

Des Moines' USCIS Field Office Moves to New Location

Austin Kennedy — Tue, 18 Jan 2011 09:56:31 -0600

For those of you here in central Iowa who are involved with an immigration process, or soon to be, please note that the local USCIS Field Office in Des Moines has moved, ever so slightly. The local USCIS field office is still located in the Neal Smith Federal building at 210 Walnut Street, in downtown Des Moines. However, with the recent move now accomplished, all Application Support Center (ASC) appointments will take place in Room 101, which is located directly off the building's lobby on the first floor. All INFOPASS and interview appointments must report to Room 215, which is located right next to the Skywalk entry.

DC Court Says Illegal Immigrants Can Receive Workers' Compensation

Austin Kennedy — Tue, 04 Jan 2011 10:16:24 -0600

Amid the hustle and bustle of the holiday season, the District of Columbia Court of Appeals in December issued an important and interesting ruling which held that an undocumented worker injured while working is eligible under D.C.'s statute to receive workers' compensation payments.

Like so many people in our current workforce, Palemon Gonzales originally obtained employment with Asylum Company, an entity who owned and operated the D.C. bar where Gonzales worked, by using a fake identity and another person's social security number.

Gonzales was working at the bar as a busboy on June 30, 2005, when a customer threw a bottle that hit Gonzales in the right eye, blinding him. Gonzales had to have his dislocated lens reattached through surgery and he wasn't able to return to work until January 25, 2006. The record is somewhat unclear as to when the employer came to know Gonzales was an undocumented immigrant, but in any case, the employer decided to not pay Gonzales' workers' compensation claim based largely on the argument that an illegal immigrant is ineligible for worker's compensation benefits.

In ruling that the employer was in fact obligated to make workers' compensation payments to the illegal immigrant, the D.C. court focused largely on the fact that D.C.'s workers' compensation statute defines "employee" broadly, and in so doing makes no mention of "illegal aliens" or immigration status in general. Importantly, the court also noted the strong public policy argument which supports undocumented workers' eligibility for benefits under the workers' compensation statute. The court reasoned that if employers were not required to make workers' compensation payments to injured undocumented workers, then employers would have a strong economic incentive to hire undocumented workers. Such a result would contravene the stated purpose of one of our primary immigration laws, the Immigration Reform and Control Act of 1986, which explicitly sought to deter employers from hiring undocumented workers. Interestingly, the definition of an "employee" under Iowa's workers' compensation statute is very similar to the definition utilized in the D.C. statute.

DREAM Act Will Come to Senate Floor

Austin Kennedy — Thu, 16 Sep 2010 14:08:28 -0600

Yesterday, Senate Majority Leader Harry Reid (D-NV) announced that he would attach the Development, Relief and Education for Alien Minors ("DREAM") Act to the Department of Defense authorization bill expected to come before the Senate, possibly as early as next week. The DREAM Act will be considered as an amendment to the Defense Authorization bill because the DREAM legislation contains provisions which would improve military readiness. While not the comprehensive immigration legislation many had hoped for, the DREAM Act addresses one of the most tragic aspects of our current immigration laws.

The DREAM Act would address the plight of young immigrants who have been raised in the U.S. and managed to succeed despite the challenges of being brought to the U.S. without proper immigration documentation. The legislation would offer a path to legal status to those who have graduated from high school, stayed out of trouble and plan to attend college or serve in the U.S. military for at least two years.

"Kids who grew up as Americans should be able to get their green cards after they go to college or serve in the military," said Sen. Reid in support of the legislation.

The Basics of the Labor Condition Application

Austin Kennedy — Wed, 25 Aug 2010 09:21:49 -0600

In very general terms, the Labor Condition Application ("LCA") is a prerequisite process that must be completed and certified by the Department of Labor prior to the submission of a petition to classify a worker in H-1B, H-1B1 or E-3 status. For more on the E-3 classification, see here.

The LCA is basically an attestation by an employer seeing to hire a worker in one of the statuses listed above that four basic conditions of employment have been met: 1) the employer is paying the nonimmigrant at least the higher of the actual wage paid by the employer to others in the same occupation with similar experience and qualifications or the prevailing wage for the occupation in the geographical area of the worksite; 2) that the employment of the nonimmigrant will not adversely affect the working conditions of similarly employed workers; 3) that there is no strike, lockout or work stoppage in the occupation for which the nonimmigrant is being hired; and, 4) that notice of the hiring of the nonimmigrant has been provided.

Recently, the DOL centralized the LCA process through the iCert web portal. The relatively new on-line submission process is governed by a "first-in-first-out" rule. However, processing times have varied. Based on a recent experience, it appears that LCA applications are taking 7 days to process.

Fee Increases for H-1B or L-1 Reliant Employers

Austin Kennedy — Fri, 20 Aug 2010 08:12:58 -0600

President Obama recently signed a new law containing provisions which increase certain H-1B and L-1 petition fees. The new law adds an additional fee of $2,000.00 for certain H-1B petitions and $2,250.00 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.

The additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50% of its employees in the United States in H-1B or L status. The additional fees apply when the employer is petitioning to initially grant the non-immigrant status to the alien OR to obtain authorization for an alien in H-1B or L status to change employers.

The new fee is in addition to the base processing fee, the existing Fraud Prevention and Detention Fee, any applicable ACWIA fee and any premium processing fees.

A Statistical Overview of Immigration Enforcement Actions in 2009

Austin Kennedy — Thu, 19 Aug 2010 12:28:29 -0600

The Office of Immigration Statistics recently released its Annual Report presenting information on the apprehension, detention, return and removal of foreign nationals in the United States during 2009. The report is illuminating and helpful because it uses specific numbers to describe a concept (immigration enforcement) that is all-too-often described with a blur of heated generalities. The report's key findings demonstrate that the following immigration enforcement activities took place in 2009:

Department of Homeland Security (DHS) apprehended 613,000 foreign nationals, 86% of whom were natives of Mexico;
The number of foreign nationals apprehended by Border Patrol decreased by 23% between 2008 and 2009;
ICE detained approximately 383,000 foreign nationals;
393,000 foreign nationals were removed from the United States--the seventh consecutive record high. The leading countries of origin of those removed were Mexico (72%), Guatemala (7%), and Honduras (7 percent);
DHS removed 128,000 known criminal aliens (i.e., those who have a criminal conviction) from the United States; and
580,000 foreign nationals were returned to their home countries without a removal order.

I'm definitely interested to see the details of 2010's Annual Report. Contrary to what is commonly perceived, in many ways the Obama Administration has really ratcheted up immigration enforcement, though they've commonly used enforcement methods that don't generate the attention-grabbing 'RAID' headlines we saw so much of in 2008-2009.

Video Showing Step-by-Step Visa Application Process at Ciudad Juarez Consulate

Austin Kennedy — Thu, 19 Aug 2010 08:12:32 -0600

It is very common for clients to be quite nervous about attending their visa interview abroad. In this step-by-step video, the visa application process is demystified a bit, at least as it occurs at the U.S. consulate in Ciudad Juarez, which also happens to be one of the most heavily utilized consulates in the world. Watching the video may help an applicant visualize the process, and hopefully be calm and confident as they experience the interview process. Plus, for what it's worth, the video is accompanied by a funky musical backdrop.

Sotomayor Introudces Supreme Court to Phrase "Undocumented Immigrant"

Austin Kennedy — Thu, 10 Dec 2009 13:48:35 -0600

The Supreme Court on Tuesday released its first four decisions in argued cases this term, which also happens to be Justice Sonia Sotomayor's first term. All four decisions were relatively minor, but one stands out on account of Sotomayor's word choice. According to the New York Times, Justice Sotomayor's opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, included the Supreme Court's first use the term "undocumented immigrant". In contrast, the term "illegal immigrant" has apparently appeared in a dozen earlier decisions.

Though many will make much of this utterance, I doubt that Justice Sotomayor labored over this particular word choice. It's not that I think that her word choice is insignificant, but I doubt that she consciously devoted much thought to how she'd describe people who are allegedly in the United States without proper authorization. Rather, as the daughter of Puerto Rican parents who moved to the United States during World War II, Judge Sotomayor relates to the immigrant experience, whether it be of the 'documented' or 'undocumented' variety. Language is the process through which we define the world around us and our role within it. In choosing (consciously or not) to pen the phrase "undocumented immigrant", rather than "illegal alien', Judge Sotomayor humanizes individual people who too often are dismissed and described with words designed to create the impression of a faceless mass of criminality. Not too shabby for her first opinion.

Immigrants' Important Economic and Political Impact In Iowa

Austin Kennedy — Wed, 02 Dec 2009 08:44:37 -0600

The Immigration Policy Center (formerly American Immigration Law Foundation) is a great organization that provides highly valuable practice advisories to immigration lawyers while also lobbying for pragmatic immigration laws and providing a vitally sane voice on the economic and cultural impact of immigration in the United States. In other words, an important part of their mission is to disseminate quality, objectively verifiable information that disputes common myths about immigration here in the U.S.

To this end the IPC has recently released the result of research and analysis which shows immigrants, Latinos, and Asians are clearly an important part of Iowa's economy, labor force, and tax base. Immigrants and their children are a growing economic and political force as workers, consumers, taxpayers, and entrepreneurs. Immigrants and their children will continue to play a key role in shaping the economic and political future here in Iowa.

Highlight's from IPC's research and analysis include:

In 2007 Iowa was home to 117,437 immigrants;
34.5% of immigrants in 2007 (or 40,473 people) in Iowa were naturalized U.S. citizens who are eligible to vote;
Latinos accounted for 4.0% (or 119,522) and Asians 1.6% (or 47,809) of Iowa's total population in 2007;
The 2008 purchasing power of Latinos totaled $2.4 billion and Asian buying power totaled $1.7 billion in Iowa in 2007;
Unauthorized immigrant families in Iowa paid between $40 million and $62 million in state and local taxes in 2007;
If all unauthorized immigrants were removed from Iowa, the state would lose $1.4 billion in expenditures, $613.4 billion in economic output, and approximately 8,819 jobs.

As you can see, Iowa isn't the homogeneous state many assume it to be. Immigrants' economic, cultural and political impact on Iowa will only continue to grow in the coming years.

"Love Knows No Border"--The K-1 Fiancée Visa

Austin Kennedy — Wed, 14 Oct 2009 15:39:52 -0600

This is Part 1 of the on-going "Love Knows No Border" series, where we'll take a look at the various immigration approaches couples can take to allow their loved one to gain access to the United States so the couple can be together in the United States. With this first installment of the series, we'll examine the K-1 visa, commonly known as the fiancée visa. To keep things relatively simple, we'll use the term "fiancée" to mean either a man or a woman. The K-1 non-immigrant visa category permits the fiancée of a U.S. citizen to enter the United States for a 90-day period of time to marry the U.S. citizen and apply for permanent residence.

A K-1 visa can be issued only after the applicants have proved the following three key elements:

the parties have previously met in person within two years of the date when they filed the petition (unless a waiver is granted);
the parties have a bona fide intention to marry; and
the parties are legally able and actually willing to conclude a valid marriage in the United States within 90 days of the K-1 fiancée's entry to the United States.

Each of these three requirements is discussed below.

The "Previous Meeting" Requirement

In order to be eligible for K-1 status, the law requires that the couple must have met in-person within the two years prior to the filing of the petition. Meeting over the internet, either by video or email or over the telephone, typically will not suffice. The "previous meeting" requirement may be waived upon proof that compliance would: a) result in extreme hardship to the petitioner; or b) violate strict and long-established customs of the beneficiary's foreign culture or social practice (ie., this is typically, but not always, an 'arranged marriage' situation).

The "Freedom to Marry" Requirement

Both parties to the intended marriage must demonstrate that they are both free to marry and that they in fact intend to enter into a valid marriage within 90 days following the fiancée's entry into the United States. In terms of being 'free to marry', both individuals must demonstrate that they're not currently married to someone else. If one or both of the parties have been previously married, they'll have to provide proof that the previous marriage has been legally dissolved (ie., divorce). In addition, the parties will have to prove that there is no law which would prohibit the wedding from occurring. For example, issues related to age or gender may prohibit certain individuals from being married in the United States.

The "Bona Fide Intention to Marry" Requirement

Rightly or wrongly, the U.S. government casts a skeptical eye toward marriages between U.S. citizens and foreigners. When evaluating a petition for K-1 status, the government starts from the position that they believe the marriage is occurring illegally for immigration benefits. Therefore, in order to overcome this presumption, the applicants must prove the "bona fides" of their relationship and intent to be married. In other words, they must prove that their love is real, and the marriage is occurring for no reason other than the couple's legitimate desire to be together.

The U.S. government deals very harshly with those that are found to have entered to a "sham marriage" for immigration benefits. Both parties to a sham marriage can be prosecuted criminally. In other words, the penalty can apply to the person coming from abroad and/or to the U.S. citizen.

Admission to the United States

K-1 non-immigrants are admitted with a single entry visa for 90 days to marry the U.S. citizen petitioner. If the K-1 fiancée actually does marry the U.S. citizen petitioner within 90 days of entry, then the K-1 fiancée is eligible to apply for adjustment of status to permanent residency. If the marriage does not occur within 90 days, the K non-immigrant must leave the United States. If the marriage does not occur and the person in K-1 fiancée does not depart from the United States, the person can be removed (ie., deported).

In summary, the K-1 visa is one tool couples can utilize to bridge the divide and begin a life together in the United States. That said, the 90 day window of time feature of this particular visa does create some logistical hurdles. As a recently married man, I can attest to how daunting it would be to have to produce a wedding within 90 days. But it certainly isn't impossible, and it does allow the foreign fiancée to adjust status fairly quickly to that of a permanent resident, which is a pretty huge benefit. All in all, the K-1 visa is one option that should be considered when one half of the couple is living abroad and the other is a U.S. citizen. Check back soon for Part 2 of the "Love Knows No Border" Series, where we'll discuss the K-3 visa.

U.S. Struggles to Keep Tabs on People with Expired Visitor Visas

Austin Kennedy — Wed, 14 Oct 2009 11:44:02 -0600

On Monday the New York Times posted an interesting piece detailing the story of Hosam Husein Smadi. Mr. Smadi was recently arrested in connection with a plot to allegedly blow up a Dallas skyscraper. Mr. Smadi had been illegally in the country for a quite a while, and should have been removed long ago.

Mr. Smadi's story highlights what administration officials fear is a common immigration situation--every year millions of people use a temporary visa to gain entry to the United States, but the government suspects that thousands of them never leave. Mr. Smadi appears to have been one of these people.

Since 2004 the U.S. government has put systems in place to check all foreigners as they arrive, no matter how they arrive. Customs officers now take fingerprints and digital photographs of visitors from most countries, and instantly compare them against law enforcement watch list databases.

In addition to the biometric measures, most entrants are also given something called an I-94 card. The I-94 card is a small square card that is supposed to be stapled into the person's passport. The I-94 card is supposed to record and reflect when and where the person arrived in the United States, and also present a date that says when the person is supposed to exit the United States. Then, when the person actually departs from the United States, they're supposed to turn the I-94 card back over to the government officials. The NY Times piece says that this check-out procedure often doesn't happen.

In fact, last year alone, 2.9 million foreign visitors on temporary visas like Mr. Smadi's checked into the United States, but never formally checked out. Some or perhaps most of these people may actually have vacated the country but failed to turn over their I-94 card. That said, the government has no way to be certain. Overall, government officials believe 40 percent of the estimated 11 million illegal immigrants currently in the U.S. came on legal visas and overstayed. The government has a very difficult time tracking these people down.

Obviously this situation brings about serious security concerns. But homeland security officials say that a series of pilot programs operating since 2004 have failed to yield a reliable exit monitoring system for the whole nation. Apparently they have not yet found the technology to support speedy exit inspections at land borders. Last year airlines balked at an effort by the Bush Administration to make airlines responsible for taking fingerprints and photographs of people exiting the U.S. So, in the meantime, the quest for a universal exit monitoring system continues.

Law enforcement agencies are left with the unenviable task of trying to weed through the masses to figure out who has overstayed their visa, and whether or not they pose a security threat. Senator Charles Schumer (D-N.Y.), chairman of the Judiciary Committee's subcommittee on immigration, says he is trying to steer money from the economic stimulus program to build an exit montioring system. Given this situation's obvious gravity, it's surprising to me that Sen. Schumer's efforts haven't gained more traction.

Fraudulent Immigration 'Consultant' Sentenced to 41 Months in Prison

Austin Kennedy — Fri, 25 Sep 2009 09:33:44 -0600

Shahrzad Eram Soleimanlou, of Falls Church, Va., was sentenced last week to 41 months in prison for defrauding her immigration clients of approximately $1 million from June 2000 through December 2005. She'll be required to pay $1 million in restitution.

Apparently Soleimanlou's scam involved lying to immigration applicants by telling them that money was required to establish something akin to a bond to demonstrate to officials that the applicants had the financial ability to support themselves and would not become a financial burden on society. She'd then steal the money and use it for her own purposes.

Hucksters and scam artists like Soleimanlou have traditionally been and, sadly continue to be, a real problem in the world of immigration law. Immigration laws are so complex and immigration clients are often so vulnerable that snake oil merchants like Soleimanlou have long exerted a corrosive and parasitic influence on the immigration system. Obviously they steal immigrants' money and they oftentimes destroy any legitimate claim to relief that might have once existed for an immigrant, but they also damage the reputation of legitimate, hard-working and ethical immigration lawyers. The more prosecutions of this nature the better for everyone. Hopefully the new Administration will make such prosecutions an enforcement priority.

HIV and AIDS Immigration Ban Nears End

Austin Kennedy — Thu, 24 Sep 2009 14:17:10 -0600

As many of you know, if an alien wishes to fully immigrate to the United States, the alien is required to submit to an HIV test as part of the overall medical screening process. Moreover, the USCIS currently has the power to deny visas to those applicants who test positive for HIV or AIDS. This roadblock also prevents those otherwise already legally located in the United States from adjusting status to a permanent resident if they are determined to have HIV/AIDS, no matter how far along they are in the immigration process.

This era appears to be nearing an end. Yesterday the USCIS issued this memo which instructs USCIS officers to place a hold on any green card applications which would otherwise be denied simply because of the applicant's HIV status. The hold will remain in place until the arrival of the final Health and Human Services rule change, which will completely eliminate the HIV/AIDS ban.

As observers have noted, the guidance memo shows that the Obama administration is very close to a final repeal of the ban, and is now instructing agencies to be ready for a pretty significant change in policy.

E-2 Investor Visa Observations

Austin Kennedy — Thu, 06 Aug 2009 09:24:43 -0600

Over the last 6 months or so I've had the good fortune of having a spate of E investor visa work. This kind of work is easy to feel good about, not only because it is good business, but because E-1 and E-2 investors directly stimulate the American economy. At a time when unemployment figures are higher than we'd like to see them, it makes all the sense in the world to have these investors starting companies in the U.S. and hiring employees. For those who are unfamiliar with the program, I should explain that E-1 and E-2 visa investors have to demonstrate as preconditions for obtaining their investor visas that they have invested a substantial amount of their own money into a U.S. business and that the business will be hiring a certain number of U.S. employees.

Anyway, after having successfully obtained a number of E-2 investor visas over the last couple months, a couple of observations come to mind:

First, an informed and well-written business plan is essential. If the immigrant investor isn't capable of writing a good business plan, then someone needs to be hired to do so. The plan needs to demonstrate that the business has forecasted reasonable expectations for financial growth and for hiring.
Second, the investment capital must be entirely owned and controlled by the intending immigrant. The investment capital can have been gifted to the E investor, but the capital cannot be in the form of loan proceeds that encumber any of the business property.
Third, consulates abroad take a long time to process these applications, so the investor needs to understand that the visa isn't going to be issued over night. Plus, it is extremely and maddeningly difficult to communicate with the consulate regarding the application. You can email or call through a third party private vendor service, but it will cost you approximately $25.00 per time. Plus, and this is a real treat, emails sent through the service have to be very short in length, I believe 200 words or less. Finally, the consulates routinely send you mysterious faxes that lack any sort of return fax number or other contact information. So you get the fax requesting additional information or clarification, and then it becomes an expensive race to the FEDEX box.
Fourth, make sure the investor hires an accountant. The investment needs to be clearly documented and explainable to the consulate, and accountants (as you might imagine) excel at such things.
Fourth, probably because this is a pretty unique area of the law, many consulate branches abroad seem unaware of the fact that they (ie., the Department of State) have jurisdiction to directly adjudicate the visa. In other words, the investor does not first have to petition USCIS for their status. All evidence and application materials can be sent directly to the consulate abroad. So, a friendly reminder on the front end of the process of their jurisdiction and authority seems to be a helpful icebreaker.

As you can see, E-1 and E-2 investor visas are a challenging area of immigration law, but also rewarding in a number of ways. The investors directly stimulate the economy by infusing it with large sums of investment cash, plus they hire U.S. workers. Makes sense, eh?

I-9 Audits Coming Your Way

Austin Kennedy — Thu, 02 Jul 2009 09:23:34 -0600

On July 1, 2009, Immigration and Customs Enforcement (aka, ICE) launched a new, "bold", audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide. In comparative terms, these 652 NOIs are more that ICE issued during all of last year. According to ICE's press release, the notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with the I-9 employment eligibility verification laws and regulations. This new initiative is part of the Obama administration's directive to ICE to shift focus away from finding illegal workers and toward efforts to hold employers accountable for their hiring practices.

Somewhat ominously, ICE's press release also states that the 652 businesses presented with NOIs have been selected as a result of leads and information obtained through other investigative means. In other words, these audits are specifically targeted, rather than casually random.

If you receive an NOI from ICE, my best advice is for you to call your local immigration attorney.

DOL Extends H-2A Visa Transition Procedures

Austin Kennedy — Mon, 20 Apr 2009 09:19:30 -0600

On Thursday, April 16, 2009, the DOL published an amendment to its current H-2A visa regulation. My thoughts and a summary of the new Final H-2A rule can be found here. The most recent amendment to the Final H-2A Rule states that employers requiring H-2A temporary agricultural workers to start work before January 1, 2010 (rather than July 1, 2009), will file Applications for Temporary Employment Certification in accordance with the transition period procedures in 20 CFR 655.100(b)(2)(2009). Stated briefly, the transition procedures provide that a prospective H-2A employer should first file its temporary H-2A labor certification application and then conduct recruitment for U.S. workers. As always, I recommend that everybody read the full text of the new, Final H-2A rule for themselves.