Immigration Lawyer Peter Messersmith

Peter Messersmith is an attorney located in Orlando, Florida. He has been practicing immigration law since 2002 and has represented thousands of immigrants and US businesses with their immigration needs.

Marriage Green Card: Marriage Fraud Interview

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In order to obtain immigration benefits available to a spouse, there must be a valid marriage between the parties. In most situations, a marriage is valid for immigration purpose if it is recognized by the law of the state where it occurs. However, a marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife.

The burden is on the applicant to demonstrate the bona fides of the marriage.  During the marriage green card process, the USCIS will interview both the husband and the wife.  In some cases, exceptions can be made and no interview takes place.  However, this is extremely rare.  If the USCIS has reason to suspect that the marriage is a sham marriage, then they will conduct a special fraud interview.  This will include separation of the parties and conducting a question and answer session under oath.  If the interviewing officer believes the marriage is a sham, the USCIS may

1) Deny the application and subsequent applications pursuant to INA 204(c);

2) Institute removal proceedings;

3) Refer for visa fraud prosecution pursuant to 18 USC Section 1546;

4) Refer to perjury prosecution pursuant to 18 USC Section 1001;

5) Refer for conspiracy prosecution pursuant to 18 USC Section 371; and

6) Refer for marriage fraud prosecution pursuant to INA Section 275(c).

Prior to the interview, the USCIS will conduct an investigation of the parties.  Specifically, they will run a criminal background check, a credit check and will search the internet for any postings the parties may have made.  This includes popular social sites like Myspace and Facebook.  The USCIS will be looking for any evidence that the parties do not intend to live as husband and wife.  When questioned at the interview, any inconsistent statements may be used as a basis to deny the application.

The focus of the interview will be to determine if the parties intend to establish a married life together.  The parties will be asked to present evidence that they have been living as a married couple.  This is normally shown by producing evidence of insurance policies, property, leases, income tax statement and bank accounts that are jointly held.  Photos and birth certificates of children born to the parties are helpful as well.

There are many factors the USCIS will look at to determine the existence of a sham marriage.  A sham marriage is a marriage that was fraudulent at its inception.  A marriage is not a sham or fraudulent marriage if the couple intended to live as husband and wife but later grew apart.

Because USCIS may use any inconsitency against the applicant to deny the green card application, it is vitally important for the parties to be properly represented and prepared.

J-1 Visa Waiver No Objection Statement: P.R. China

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Foreign nationals who enter the US in J-1 visa status or change their status in the US to J-1 may be subject to INA Section 212(E).  Persons subject to 212(E) are required to return to their home country for an aggregate period of two years or obtain a J-1 visa waiver to waive this requirement before they may change their status in the US, obtain H-1B Visa, L-1 visa or permanent residency.

There are four avenues for obtaining a J-1 visa waiver but generally, the easiest way is to request a statement from the foreign national’s home country stating that there is no objection against the foreign national to remaining in the US without returning home for two years.  While this is widely considered the easiest way to obtaining a waiver, it is in no way a sure thing.  There are several US and foreign agencies that must support the applicant before the no objection letter is issued and the waiver is approved.

For Chinese nationals, there are seven main requirements, though exact requirements may differ from case to case to obtain the No Objection Statement (NOS).

1.  The NOS applicant must be a Chinese citizen holding a personal passport;

2.  The NOS applicant must have received private or government funding;

3.  The NOS applicant must have been present in the US for one year at the time of application;

4.  The NOS applicant must be at least six months from completing the J1 program;

5.  The NOS applicant must have registered with the Chinese Education Deparment;

6.  The NOS applicant must have settled with the J1 program sponsor regarding housing and financial issues; and

7.  The NOS applicant must provide a valid reason why the NOS should be granted.

Exceptions can be made in certain circumstances.

After issuance of the NOS, the applicant must petition the U.S. Department of State (DOS) for issuance of the J1 waiver.

Recent Challenges with the PERM Labor Certification Process

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Recent layoffs have made obtaining PERM certification much more challenging than in the past. If there is a layoff in the area of intended employment, PERM regulations require that the employer notify and consider all potentially qualified laid off workers in the occupation or related occupation. 20 C.F.R. § 656.17(k)(1). Moreover, the employer must disclose the layoffs to the Department of Labor when filing the PERM application.

If, during the recruitment phase of the PERM process, just one minimally qualified US worker applies for the open position and cannot be disqualified, the PERM will fail, assuming there is only one opening. Therefore it is imperative to plan ahead and determine exactly which laid off workers must be notified.

On January 29, 2009 the Department of Labor (DOL) provided an update on PERM approval rates and audits. Since the start of the PERM program in 2005, 224,000 PERM applications have been filed and 68,674 of those applications were either withdrawn or denied. This is an overall approval rate of 69%. Additionally, the DOL noted that 26% of currently processed cases were being audited.

Obama’s Stimulus Plan and Its Effect on H-1B Visa Applications

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On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 containing the Sanders H-1B amendment.  The Sander H-1B amendment prohibits the sponsoring of H-1B visas by organizations that received funding of through the Emergency Economic Stimulus Act of 2008 (TARP money) unless the organization complies with the requirements of H-1B dependent employers for the next two years.

H-1B dependent employers are defined as employers with:

1.  25 or fewer full time equivalent employees in the US and employ more than seven H-1B visa holders; or

2.  26-50 full time equivalent employees in the US and employ more than 12 H-1B visa holders; or

3.  have more than 50 full time equivalent employees in the US and employ at least 15% of their workforce with H-1B visa holders.

H-1B dependent employers must make certain attestations with regard to US worker displacement, recruitment and hiring. The American Immigration Lawyers Assication (AILA) recently posted a press release stating that these attestation requirements “saddles TARP fund recipients with strict regulations for hiring foreign workers under the H-1B program that are so cumbersome as to amount to an out-and-out prohibition.”

Notwithstanding AILA’s position, this is actually good news for many prospecitve H-1B visa applicants who intend to file this April 2009 for FY2010.  Last April, USCIS was overwhelmed with H-1B applications and the 65,000 H-1B Visa Cap was met in the very first week and tens of thousands of applications were rejected through a lottery system.  If the Sanders amendment precents the large financial firms from applying as AILA as predicted, there will be many more available H-1B visas for applicants from smaller US companies.

H-1B Visa Transfers

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Many H-1B visa holders are under the impression that there is a “grace period” following the conclusion of their stay in H-1B visa status. Most believe that if they are laid off, fired or otherwise terminated that they have 30, 60 or even 90 days to find a new H-1B sponsor or just to gather their things and leave the country. This is not the case.

If the H-1B visa status terminates because the I-94 expires and there is no application for extension or transfer, then the H-1B visa holder has a grace period of 10 days, if and only if an extra 10 days is granted by US Customs and Border Protection (CBP) when the H-1B visa holder enters the United States.

If the H-1B visa holder is fired or terminated then he or she is out of status immediately. In fact, the petitioning employer is required to notify USCIS of the date of termination. If the H-1B holder is not employed by the petitioning employer and has not filed an application to transfer the H-1B visa to another company then he or she is out of status and may be accruing unlawful presence. Matter of Lee, 11 I. & N. Dec. 601 (Reg. Comm. 1966). However, USCIS has some discretion pursuant to 8 CFR 214.1(c)(4) and may allow an application for H-1B visa transfer if filed within 30 days of termination.

H-1B visa transfers are governed by INA § 214(n) and allows an H-1B visa holder to “port” to a new employer if these four requirements are met:

    1. The foreign national was lawfully admitted

    2. the new petition is “nonfrivolous”

    3. the new petition was filed before the date of expiration of period of authorized stay

    4. subsequent to lawful admission, the foreign national has not been employed without authorization

“Port” or H-1B portability means that a H-1B holder may work for a new H-1B petitioner upon the filing of an application to transfer to the new employer so long as the four requirements are met. The H-1B holder may attempt to port, even 30 days after their previous H-1B employment was terminated relying on 8 CFR 214.1(c)(4), and work for the new H-1B visa employer upon filing the application. In this case the H-1B visa holder would be legally authorized to work for the new petitioning employer at least until the application is adjudicated. Should the transfer application be denied, the alien would be required to depart the US. If the application is successful, he or she may continue to work for the new employer for the duration of the new authorized stay as shown on the new I-94.

FY 2009 H-2B Cap Reached

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The H-2B Visa cap was met on January 7, 2009 for FY2009.  Since the passage of the Save Our Small Business and Seasonal Businesses Act of 2005, the H-2B filing season was split into two halves.   The purpose of splitting the filing season  is to avoid summer season filers to have an advantage over winter season filers.  The first half for FY2009 began June 2009 and the cap was met on July 29, 2008 and the second half began December 2008 and has now been met as of January 7, 2009.  The filing season for the first half of FY2010 will begin June 2009.

The inability for US businesses for find and hire qualified seasonal workers will undoubtedly harm US business.  To see what you can do to help raise the H-2B cap, please visit this site.

There are few exemptions from the H-2B visa cap and they are:

1.  Fish roe processors, fish roe technicians and supervisors of fish roe processing.

Previously, there was an exemption for H-2B returning workers.  An employer was able to attest that the H-2B was returning for work the next season and the H-2B would be classified as H-2R.  However, this exemption expired Sept 30, 2007 and was not extended.

On Social Security Numbers and Driver’s Licenses

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Foreign nationals in the United States require a tax identification number from the Social Security Administration (SSA) or the Internal Revenue Service (IRS) to perform certain actions in the United States such as banking, taxes and obtaining a driver’s license.  While, generally, a foreign national must have work authorization to obtain a social security number (SSN), he or she may obtain a individual taxpayer identification number (ITIN) for tax and banking purposes.

In order to obtain an ITIN, a foreign national must file Form W-7 and be within the following categories of person eligible for ITIN issuance.

1.  A nonresident alien individual eligible to obtain the benefit of reduced withholding under an income tax treaty;

2.  A nonresident alien individual not eligible for an SSN who is required to file a U.S. tax return or who is filing a U.S. tax return only to claim a refund;

3.  A nonresident alien individual not eligible for an SSN who elects to file a joint U.S. tax return with a spouse who is a U.S. citizen or resident alien;

4.  A U.S. resident alien (based on the substantial presence test) who files a U.S. tax return but who is not eligible for an SSN;

5.  An alien spouse claimed as an exemption on a U.S. tax return who is not eligible to obtain an SSN;

6.  An alien individual eligible to be claimed as a dependent on a U.S. tax return but who is not eligible to obtain an SSN;

7.  A nonresident alien student, professor, or researcher who is required to file a U.S. tax return but who is not eligible for an SSN, or who is claiming an exception to the tax return filing requirement; or

8.  A dependent/spouse of a nonresident alien holding a U.S visa who is not eligible for an SSN.

Foreign nationals who wish to apply for an SSN must file Form SS-5 with the SSA and meet the following requirements.

1.  Provide proof of legal immigration status.  Form I-94 must be presented.  F-1 Visa holders must provide their current I-20 and J-1 Visa holders must provide their current DS-2019.

2.  Provide proof of work authorization.  For visa holder who are eligible to work incident to status, such as H-1B, L-1 or O-1 visa holders, the I-94 is sufficient.  For others, such as applicants who have filed for adjustment of status, they must provide a work authorization card or green card.

3.  Proof of Age.  In most circumstances, a passport or birth certificate is sufficient.

4.  Proof of Identity.  Any document used must show your name and a recent photograph.  Commonly accepted documents include green card/immigrant visa and passport, I-94 card and passport or work permit.

While every state has their own requirements to obtain a drvier’s license, they will all genreally require

1.  Proof of Identity;

2.  Social Security Number; and

3. Proof of residency.

New Religious Worker (R-1 Visa) Regulations

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In an effort to combat alleged fraud, the USCIS has made significant new requirements for petitioning religious organizations and R-1 Visa beneficiaries. The primary changes are a requirement to file an R-1 petition with USCIS, the petitioning organization must allow USCIS to inspect the site where the prospective R-1 holder will work, the initial validity period will be decreased from 36 months to 30 months and the type of positions that can be sponsored have been limited.

A. Petitioning and Attestation Requirements

A nonimmigrant alien seeking R-1 status cannot self-petition, but must have an employer submit a petition (Form I-129) on his or her behalf. In the petition, the prospective employer must attest to a number of factors; including, but not limited to: (i) That the prospective employer is a bona fide non-profit religious organization or a religious organization which is affiliated with the religious denomination and is exempt from taxation; (ii) the number of members of the prospective employer’s organization, the number of aliens holding religious worker status (both special immigrant and nonimmigrant) and the number of petitions filed by the employer for such status within the preceding five years; (iii) the complete package of salaried or non-salaried compensation being offered and a detailed description of the alien’s proposed daily duties; and (iv) that an alien seeking special immigrant religious worker status will be employed at least 35 hours per week and an alien seeking nonimmigrant religious worker status will be employed for at least 20 hours per week.

B. IRS Determination Letter

The petitioning employer must file a determination letter from the Internal Revenue Service (IRS) of the tax-exempt status of the petitioning religious organization under Internal Revenue Code (IRC) 501(c)(3), 26 U.S.C. 501(c)(3).

C. USCIS On-Site Inspections

USCIS may verify supporting evidence provided by a petitioner through any appropriate means, including an on-site inspection of the petitioning organization which may include a tour of the organization’s facilities, an interview with organization officials, review of selected organization records relating to the organization’s compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records that USCIS considers pertinent to the integrity of the organization.

D. Period of Initial Admission and Extension of Status for R-1 Workers

Religious workers may obtain an initial period of admission of up to 30 months and then may obtain one extension of religious worker status for up to 30 months, for a total of no more than 60 months.

E. Compensation Requirements

With limited exceptions, the beneficiary of an initial petition for R-1 nonimmigrant status must be compensated either by salaried or non- salaried compensation, and the petitioner must provide verifiable evidence of such compensation. If there is to be no compensation, the petitioner must provide verifiable evidence that such non-compensated religious workers will be participating in an established, traditionally non-compensated, missionary program within the denomination, which is part of a broader international program of missionary work sponsored by the denomination. The petitioner must also provide verifiable evidence of how the aliens will be supported while participating in that program. Petitioners must submit verifiable evidence of past compensation or support for nonimmigrants with any extension of status request for such nonimmigrants. Special immigrant petitioners must submit verifiable evidence of: (1) How the petitioner intends to compensate the alien and (2) past compensation or support to demonstrate the required previous two years of religious work.

F. Definition of “Religious Occupation”

Religious organizations must submit evidence identifying religious occupations that are specific to that denomination. Additionally, the petitioning organization must submit evidence demonstrating that an alien’s proposed duties meet the religious occupation’s requirements.

The federal register entry can be found here and the USCIS announcement can be found here.  On December 4, 2008, USCIS published a new I-129 Form which includes the new R-1 attestation.

The Electronic System for Travel Authorization (ESTA) is now mandatory for all Visa Waiver Program (VWP) Travelers

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On November 13, 2008, the Department of Homeland Security (DHS) published this notice requiring travelers using the Visa Waiver Program (VWP) to obtain authorization to use the VWP through this DHS website for travel on or after January 12, 2009.  Prospective VWP travelers must be prescreened by the DHS through ESTA before travel.  The airline is now required to electronically verify with the United States Customs and Border Protection (CBP) that VWP travelers have an approved travel authorization on file.  Applications must be submitted through the ESTA at least 72 hours prior to travel and authorizations are currently valid for two years.  All VWP travelers must comply, even non-ticketed infants.  However, authorizations merely confirm that VWP travelers are allowed to use the VWP and do not guarantee admission to the US.

Applicants must provide the following information for travel authorization.  Name, sex, date of birth, country of citizenship, country of residence, telephone number, email address, passport number, passport issuance and expiration date, passport issuing country, airline and flight information including boarding city, destination address in the US and must answer the following questions.

A) Do you have a communicable disease; physical or mental disorder; or are you a drug abuser or addict?

B) Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

C) Are you seeking to work in the U.S.; or have you ever been excluded and deported; or been previously removed from the United States; or procured or attempted to procure a visa or entry into the U.S. by fraud or misrepresentation?

D) Have you ever detained, retained, or withheld custody of a child from a U.S. citizen granted custody of the child?

E) Have you ever asserted immunity from prosecution?

Updated Rule for Third Country Nationals Applying For a Visa in Mexico

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Third Country Nationals may apply for a US visa in Mexico under certain circumstances.  Third Country Nationals (TCNs) are Non Mexican nationals in the United States on temporary visas who wish to apply for a new visa at a US Consulate in Mexico.  The US Consulate in Ciudad Juarez, Mexico has announced on November 3, 2008 that it is changing the application procedure as well as the types of visa application it will accept for all Consulates in Mexico for TCNs.

In order to make an appointment for a visa application, the application must either apply online at http://www.usvisa-mexico.com or by phone at 1-900-476-1212.

TCNs Who Can Apply in Mexico are:

Applicants seeking to renew their visa in any category except B1/2 (tourist/business), if the initial visa was issued in the applicant’s country of former residence; and
Applicants seeking to renew their visa in any category except B1/2 (tourist/business), if the initial visa was issued in the applicant’s country of former residence, and a subsequent visa by a consular post in Mexico.

TCNs Who Cannot Apply in Mexico are:

Applicants for B1/2 visas, including renewals are not accepted from third country nationals who are not resident in Mexico;
Applicants who entered the U.S. with a visa issued in their home country and changed status with Department of Homeland Security in the U.S. who seek a new visa in the new visa category;
Applicants who entered the United States in one visa category and are seeking to re-enter the U.S. in a different visa category;
Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s;
Applicants who entered the U.S. under the auspices of the Visa Waiver Program; and
Applicants who obtained their current visa in a country other than that of their legal residence.

For further information regarding Third Country Visas, visit our Third Country Visa webpage.