USCIS Fraud Alert Targeting L-1 Visa Companies

The United States Citizenship and Immigration Services (USCIS) fraud unit, formally known as the Fraud Detection and National Security Directorate (FDNS), is expected to expand the number of site visits for this year. The U.S. Department of Homeland Security’s Office of Inspector General has analyzed the USCIS L-1 intracompany transferee program, suggesting ways to reduce fraud and standardize adjudications across the program. The USCIS has released the report on August 2013 indicating the expansion of the site visit program.

Fraud Detection and National Security Directorate is responsible for audits which have increased drastically over the last three or four years. Federal authorities plan to visit roughly 30,000 work sites this year to investigate whether everything listed in L-1 petitions is, in fact, correct. In 2010, the government ramped up its anti-fraud efforts, meanwhile the FDNS solely targeted its efforts on reviewing H-1B visas but the corporate community has seen an increase in L-1A and L-1B visa investigations. It is estimated that over 80 percent of the DHS fraudulent cases are now from these site visits, which as a result, the effectiveness of this scheme has led to its increased scope.

The L visa class is utilized to transfer multinational executives and managers from overseas to affiliate companies in the U.S. In essence, employees with special knowledge of the company’s proprietary processes and products may qualify for an L-1B visa transfer. Traditionally, the L visa enjoyed a level of freedom from compliance rules and strict immigration reporting. This has all changed and companies are now aware that USCIS is oppressively targeting managerial personnel. FDNS site visits will be conducted by immigration officers who are specifically trained to conduct all L visa company reviews. Indicated on the petition site visits are to be conducted randomly at the work site and are selected for review. Unannounced visits can apprehend the employer unprepared and the government considers this tool to be an extremely effective way to uncover work-site fraud.

The FDNS site inspector will pursue to interview the foreign national, as well as the individual that signed the relevant visa petitions forms, and the inspector will likely want to take photographs of the work site as part of the compliance review process. The inspector may ask to verify certain documents, such as the beneficiary’s recent paystub, and check whether the parties have recollection of the petition contents in order to determine whether the company is in compliance with the terms mentioned in the said petition.

Company Preparations to Consider Although there has been minimal guidance from USCIS, L-1 employers should be ready for FDNS site visits and should take these visits seriously even though the USCIS site visits is a voluntary program. Companies are urge to identify procedures ahead of time to prepare for an unannounced FDNS worksite visit and alert all personnel of these procedures. The inspector will often meet with the receptionist first and if unprepared it can unwittingly complicate matters by being unprepared. Therefore, procedures should be in place to contact HR if an inspector is in the vicinity in order to restrict his movement to only the designated conference and work area.

Delegating a spokesperson will wipe out any confusion and allow for an efficient review.

Internal reviews of all L-1 employees should be conducted by employers to ensure that their job duties, worksites, and salaries are easily available for review. Employers should also retain complete copies of all I-129 L petitions and documents. Moreover, files must be maintained meticulously in order to avoid inspectors uncovering information. Employers should assure that foreign national employees and their managers are familiar with the content of the L petition and supporting documentation. Companies are encouraged to ensure employees are cooperative with inspectors, and discuss what information should or should not be provided in case such a visit takes place. Even though there are no requirements to file an amended L-1 petition due to minor changes in the employment, employers should be prepared to provide complete and accurate information regarding L-1 employees to site inspectors either via site or in response to follow-up inquiries by an inspector which is usually handled via email.

As previously mentioned, the objective of the site visit is fraud detection. Usually, USCIS will demand confirmation of the petitioning organization is a bona-fide legal entity, that the foreign national employee is in fact working at the location mentioned on the petition, and that the employee’s mentioned duties and compensation information is correct. If an inspector finds discrepancies between the petition and what they visually verified on their visit, they may revoke and terminate an approved petition. After taking in consideration the risks involved, we strongly advise our clients to expect questions about the specific job including the job duties for the position in the U.S. and overseas, the direct and indirect subordinates reporting to the manager, qualifications for the position, and U.S. salary. It is important to recollect that site visits should not be “fishing expeditions”. Even though questions should be narrowed to a specific foreign national and should also be restricted to the legal requirements for the L-1 status and not grasp other employment or benefits issues, a suspect site visit can lead to further inquiries from other government agencies and even worse can often become a public relations disaster if the investigation becomes public or an executive is compelled to leave his U.S. position. For this reason, a plan of action for unanticipated site visits is a must.

What Does an Immigration Attorney Do?

 U.S. immigration law is notoriously complex. Even minor errors in a visa application or evidence you provide can lead to a year-long delay, deportation, or denial of a visa. An immigration lawyer can help you understand your rights, interpret the law, develop a strategy, and walk you through the immigration process. An immigration attorney can also represent you in court, although most time is spent as a mediator between you and the Bureau of U.S. Citizenship and Immigration Services (USCIS).

Situations in Which an Immigration Lawyer Can Help
An immigration attorney can help you at any point of the immigration process, but there are some situations in which it is especially important to seek legal counsel.

  • You have been denied before. If you have previously applied for a visa or green card and you were denied, hire a lawyer for your next attempt. An attorney can help you improve your chances of success and determine why you were initially denied.
  • You or a loved one have a medical condition. Sometimes a medical condition changes the type of application you will need to submit, and there are some conditions that can prevent you from entering the country, such as communicable diseases.
  • You are coming to the U.S. for a job, but your employer will not help. If you have been hired for a job in the U.S., you may need the help of an attorney if your employer is not providing the assistance you need. Some employers simply lack the knowledge and experience to help overseas employees get a visa.
  • You have been convicted of a crime. If you have been convicted of a crime, you must disclose it on your application. While this will reduce your chances of being approved, an immigration lawyer can help you explain the charge to USCIS. Not all crimes bar you from entering the U.S., but you risk deportation if you make any misrepresentations.
  • You or a loved one are facing deportation. An immigration attorney can work to stop the deportation and get you approved for citizenship. Contact an attorney for help immediately if you are or have been in immigration court removal proceedings. If the proceedings are not finished or on appeal, your immigration status is still in the power of the courts. An attorney will help you research possible avenues of relief, prepare for court, and represent you at your hearing.
  • You are overwhelmed by the paperwork. If you have started the process on your own but you are feeling overwhelmed, you aren’t alone. The immigration process is complex and confusing, but an attorney can help you make sure your paperwork is done properly to avoid unnecessary delays.

While an immigration lawyer can be invaluable, there are some things a lawyer cannot do for you. An attorney cannot guarantee you get a green card or a visa, nor can an attorney help you mislead an immigration official if you are in a situation that bars entry to the U.S., such as a conviction for a certain crime.

If you suspect problems will come up during your case or you or a loved one have been threatened with deportation or contacted by the Bureau of U.S. Citizenship and Immigration Services, it’s important to schedule a consultation with an immigration lawyer to discuss your options.

H-1B Visa Alternatives: What are My Options?

Due to the expected high demand, employers should be planning now for a possible rejection of their H-1B petitions. Alternative visa options for affected employees include, but are limited to, the following:

  • for Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement;
  • for nationals of Australia, the E-3 visa;
  • for nationals of Chile or Singapore, the H-1B1 visa;
  • for intracompany transferees, the L-1 visa (an organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances);
  • for individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension;
  • for individuals who may qualify under the extraordinary ability criteria, the O-1 visa;
  • for essential employees if the company and foreign national share the same nationality, the E-2 visa;
  • for individuals in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT);
  • for individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance;
  • for individuals whose employers have offices outside the United States, the individuals can be placed on the foreign payroll and work abroad until next year’s H-1B filing period or until another type of work visa becomes available;
  • for individuals entering a structured training program, the H-3 visa; and
  • for individuals who can be categorized as an Exchange Visitor, the J-1 visa.

Every situation is different and you should consult your legal to ensure you have viable alternatives should your H-1B petition be rejected.

Will my adopted child get a green card and/or US Citizenship?

The answer is maybe.

A Hague Convention adoptee may qualify for immigration benefits if: (1) the child is habitually a resident in a country that is a party to the Convention, (2) the child is under 16 years of age when the immediate relative petition is filed; (3) the child has either: (a) two living parents who are incapable of providing proper care for the child, or (b) one sole or surviving parent because of the death, disappearance, abandonment or desertion by the other parent, or (c) a legal custodian other than a birth parent (e.g., ad adoptive  parent or institution); (4) the parent(s), legal guardians, or institutions freely give their written irrevocable consent to terminate their legal relationship with the child, and to allow the child to be adopted and to emigrate; (5) at least one of the adoptive parents must be a U.S. citizen, the parents must be habitually resident in the United States, the parents (if married) must adopt the child jointly, and the parents must be suitable for adoption; (6) the child must have been the subject of a full and final foreign adoption which is effective for immigration purposes, or the prospective adoptive parents must have custody of the child for emigration and adoption in the United States in accordance with the laws of the foreign-sending country, and appropriate steps must have been taken to secure the child’s adoption in the United States. A USCIS amendment enacted in November 2010 provides for the adoption of older siblings of a Convention adoptee. In addition, unlike the orphan statute, the Hague Convention permits the adoption of a child who has two living parents provided the natural parents are incapable of providing proper care for the child.

For a list of Hague Convention signatories, click here:
http://travel.state.gov/content/adoptionsabroad/en/hague-convention/convention-countries.html

Foreign-born children who are adopted abroad or will be adopted in the United States by U.S. citizens may qualify for immigration benefits as immediate relatives under INA § 101(b)(1)(F). Foreign-born children are eligible for “orphan” status if: (1) they have been abandoned by or separated from both parents, or the sole surviving parent has irrevocably released the child for immigration and adoption; and (2) the adoptive parent or parents are U.S. citizens and have adopted the child already or are in the process of adopting the child and have met the pre-adoption requirements of the state,

What are the reasons for green card denials?

Green Card Process

When it comes to getting a green card, it is vital to understand the process. Part of the understanding the process includes knowing the top reasons green cards are denied. Knowing why a green card could be denied now can prevent rejection in the future. Not knowing the process can make getting a green card much more difficult and time-consuming.

However, a proper understanding of the process will make getting a green card as simple as possible. Knowing how the process works will enable those applying for a green card to make sure everything is in order before they start the process. This article is going to discuss the most common reasons green cards are denied.

Green Card - Luis Hess Law

Health Reasons

A green card could be denied for health reasons. If an individual has a transmittable disease that is deemed a threat to the public, they will be denied a green card. The government does not want anyone to enter the country if they are a threat to the public. Therefore, it is important for anyone who intends to apply for a green card to get a health screening before they do so.

Getting a health screen before they apply will ensure they are in free of transmittable diseases. If they are not in good health, they can seek treatment before applying. Seeking treatment before applying will allow the process of obtaining a green card go as smoothly as possible.

Criminal Record

If one has a criminal record, their green card could be denied. Therefore, if one plans to get a green card, they need to avoid legal trouble at all costs. From the perspective of the government, allowing individuals with a history of criminal behavior to enter the country will be a threat to the public.

In order to avoid this risk, all green card applicants will be asked about their criminal history. This questioning will be done along with a background check. Some crimes are more likely to result in a denial than others. Crimes such as prostitution, drug trafficking, and fraud are explicitly forbidden.

Security Threat

All green card applicants are subject to an extensive investigation. The investigation will determine, among other things, if the green card applicant is a threat to homeland security. This threat is determined based on how likely it is for the individual in question to commit acts of terrorism or other serious crimes.

If an applicant is determined to be a threat, their application will be denied. Therefore, anyone who intends to apply for a green card must use caution to avoid any actives that could mark them as suspicious. Once an individual is deemed to be a threat, there is no chance of them receiving a green card.

Final Thoughts

All in all, knowing the possible reasons for a green card denial will better arm an individual to have their green card application approved. They will be able to avoid behaviors that will disqualify them. They will also have the opportunity to treat any possible health conditions before applying.

Receiving a green card is a long, complicated process. Therefore, knowing as much as possible before applying will give one the best possible chance of being approved.

TN Visa: An Introduction

The TN Visa is a temporary work visa allowing only Mexican and Canadian nationals to work within the United States. 

Requirements

In order to apply, the applicant must

  1. Possess a university degree;
  2. Be offered a US-based employment position within the United States,
  3. That position must require a university degree, and
  4. The position falls within a pre-approved profession list as found within APPENDIX 1603.D.1 OF ANNEX 1603 OF THE NAFTA.  For a list of approved professions, click here: http://www.internationalcenter.umich.edu/immig/tnvisa/tn_occupationlist.pdf 

Bank records, financial statements, and similar documents are not required to apply.  Nonetheless, the existence of those documents makes it easier to obtain approval when included within an application packet. 

An individual may be admitted to the United States in TN status for the period of time required by the employer, up to a maximum initial period of stay of three years. TN professionals can receive extensions of stay in increments of up to three years, with no outside limit on the total period of stay. The limits on stay for H-1B (six years) and L nonimmigrants (five or seven years) do not apply to TN professionals. In addition, Canadian and Mexican professionals who have already completed six years in the H-1B or L nonimmigrant category can immediately qualify for the TN category without fulfilling the requirement of one-year abroad imposed on H-1B and L nonimmigrants. The only limitation on the duration of stay of TN nonimmigrants is that the purpose of the stay must continue to be temporary.

Canadian professionals may enter the United States under NAFTA without the requirement of a USCIS petition approval required in the H-1 category; these professionals can enter the United States simply by providing documentation at the port of entry that they are engaged in one of the designated professions, and that they possess the requisite educational credentials to qualify in the listed profession. Canadian professionals are designated as TN-1 nonimmigrants.

Mexican nationals seeking TN status must apply for a nonimmigrant visa at a U.S. consulate.

The Easy Guide to live and work in the United States (Even if you don’t have American relatives)

The Easy Guide to Live and Work in the United States

There are numerous opportunities to live and work in the United States. The question is whether you want to work temporarily (i.e., a non-immigrant visa) or permanently (i.e., an immigrant visa) in the United States.

Most guides in the web are complex and redacted with terminology hard to understand. The purpose of this guide is to help anyone interested in live and work on the United States on what VISA they need to apply, and the steps they need to follow.

This guide is going to be separated in three parts:

1. Temporary work-related visas include the

  • B1/B2 (business visa)Business people and visitors are permitted to enter the US for a short period of time (typically 6 months, see your Form I-94 for the exact date).  The visa permits these travelers to meet with prospective clients, sign contracts, negotiate deals, etc.  Essentially, the visa permits the visa holder to set the framework for starting or continuing business.  However, it does not permit the visa holder to work in the US on a salary-basis.
  • E-1 (Treaty Trader)This is a trade-based visa between the US and the country of citizenship of the passport holder.  The applicant must be exporting products or services from their country of citizenship (e.g., Mexico) into the United States or importing products/services into their home country (e.g., Canada).   The visa holder is permitted to live and work in the US as long as the trade is in existence and is sufficient.  The visa holder is not required to maintain a substantial number of employees within the business.
  • E-2 (Treaty Investor)This is an investment-based visa between the US and the country of citizenship of the passport holder.  The applicant must be irrevocably investing capital (i.e., money) into a US business. The business can either be a start-up or an established enterprise (e.g., a franchise).  The visa holder is expected to have employees employed within several years of the business existing.  The visa holder is permitted to live and work in the US as long as the investment and business remain operational.
  • TN-TD (NAFTA Professional Worker Visa)This is a NAFTA-treaty based visa that is only available to Mexican Nationals, Canadian Nationals, and Americans.  In order to come to the US, the applicant must (a) have a job offer from an existing American business, and (b) have a university degree (with some exceptions).  The application requirements are fairly low compared to the other non-immigrant visas.  Most interested applicants can start and finish the process in less than two weeks.  Applicants can work in the US for several years before being required to find another visa.
  • I Visa (Foreign Media, Press, and Radio), The I-visa is for foreign nationals involved in the print or online media, press, or radio to work in the US for one year.  Individuals are permitted to be paid by their original employer but are not permitted to be paid by other businesses.  The advantage of this visa over the B1/B2 visa is the extended period of time for which the individual can stay in the US.  
  • J-1 (Exchange Visitor)This educational and cultural exchange visa allows a foreign national to work for an approved US Department of State sponsor.  The visa allows applicants to visit, work, research, or train under a variety of programs including agricultural training programs, teacher programs, camp counselors, or other specialist programs.  Depending on the program, the visa holder can be in the Us from 12 months to 7 years.  
  • H-1B (Person in Speciality Occupation)This university-required visa becomes available only once a year on April 01 and is limited to the first 65,000 applicants. Applicants must find a US sponsor who needs to fill a part-time or full-time position that would normally require a university degree. The sponsor must demonstrate the ability to pay the individual hourly wage rates as determined by the Department of Labor.  This visa is dual-intent and allows the applicant to apply for permanent residency (i.e., a Green Card) after the applicant has successfully obtained the H-1B visa.  The visa can only be held for six years (with some exceptions).
  • H-1B1 (Free Trade Agreement Professional)Similar to the H-1B, this is university-required visa is intended for professionals from Singapore and Chile to temporarily work and live in the United States.  The primary difference is that applicants cannot apply for permanent residency thru this visa.  The visa is valid for one year and can be extended several times thereafter.
  • H-2A (Temporary Agricultural Worker)This agricultural visa allows US employers to hire foreign nationals to work in the US for ten months or less.  To qualify, the employer must demonstrate to the Department of Labor that (a) there is a seasonal or temporary need, and (b) there are not enough US workers who are able and willing to perform the required job for offered pay.
  • H-2B (Temporary Non-Agricultural Worker)
  • H-3 (Trainee / Special Education Visitor)
  • L-1A/B (Intracompany Transfer)
  • O-1 (Individual with Extraordinary Ability or Achievement)
  • P-1 (Individual/Team Athlete or Member of an Entertainment Group)
  • P-2 (Artist of Entertainer – Individual or Group)
  • P-3 (Artist or Entertainer – Individual or Group)
  • Q-1 (Participant in an International Cultural Exchange Program)
  • F-1 CPT and OPT (Curricular Practical Training / Optional Practical Training)
  • M-1 (vocational and technical school training)

2. Permanent work-related status can be based on marriage to a US Citizen or sponsorship by an employer. Sponsorship by employers includes:

  • EB-1 (Employment First Preference: Priority Workers)
  • EB-2 (Employment Second Preference: Professionals Holding Advanced Degrees, Persons of Exception Ability)
  • EB-3 (Employment Third Preference: Skill Workers, Professionals, and Unskilled Workers)
  • EB-4 (Employment Fourth Preference: Certain Special Immigrants), and
  • EB-5 (Employment Fifth Preference: Immigrant Investors)

3. Best practices, tips and different factors that affect your application.