On January 15, 2010, the Department of Homeland Security said it would offer Temporary Protected Status (“TPS”) for 18 months to Haitian nationals, who were already here in the United States when the earthquake struck in Haiti.

This means that during the period of time that the TPS program is in effect, Haitian nationals in the U.S. who qualify for TPS benefits may remain in the United States and obtain work authorization. TPS does not lead to permanent resident status. Once the TPS program ends for Haiti, TPS beneficiaries will revert to the same immigration status they maintained before TPS (unless that status had since expired or been terminated) or to any other status they may have acquired while registered for TPS. So, if you were here without a valid visa prior to gaining TPS and did not obtain any status during the TPS period, then your status will revert back to the same unlawful status you had prior to becoming a TPS beneficiary upon the termination of the TPS designation.  DHS, however, may grant extensions of TPS benefits indefinitely.

Please note, however, that you will not automatically qualify for TPS.  You must first apply for it.

Who is Eligible for the Temporary Protected Status?

If you are a Haitian national, then you may qualify for TPS benefits if you:

1. Can establish continuous physical presence and continuous residence in the U.S. prior to January 10, 2010,
2. Are not subject to one of the criminal, security-related, or other bars to TPS; and
3. Timely apply for TPS benefits.

You will not qualify for TPS benefits if you:

1. Have been convicted of any felony or two or more misdemeanors committed in the U.S;
2. Are a persecutor, terrorist or otherwise subject to one of the bars to asylum; or
3. Are subject to one of several criminal-related grounds of inadmissibility for which a waiver is not available.

To learn more about the program, please feel free to contact us at info@cftienlaw.com.

Employment-based Green Cards:

There are a limited number of green cards available each year to foreign nationals who possess the skills needed to fill the employment gaps and/or needs of US employers.

There are five (5) types of preference categories for employment-based green cards (also known as an “employment-based permanent residence”):

1. EB-1: Priority Workers
2. EB-2: Workers with advanced degrees or exceptional ability
3. EB-3: Skilled, professionals or other workers
4. EB-4: Religious workers and various miscellaneous categories of workers and other individuals; also called special immigrants.
5. EB-5: Individual investors willing to invest a certain amount of money in a U.S. business

Unless you qualify for the EB-1 category, you must meet the following requirements to qualify for an employment-based green card:

1. Have a full-time job or job offer from a U.S. employer;
2. Possess the necessary educational and skills backgrounds; and
3. Have a U.S. employer who is willing to sponsor your green card, which can often be a tedious and expensive process.

A. The first preference category, EB-1: Priority Workers, are divided into three (3) subcategories:

1. Aliens with extraordinary ability in the “sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation” INA § (b)(1)(A).
2. Outstanding University Professors or Researchers who are internationally recognized in their particular field with at least three (3) years of either teaching or research experience in that field. Professors need to be tenured or on the tenure-track at the university.
3. Certain Executives and/or Managers of Multinational Companies who have been employed by a qualified company outside the U.S. for a certain period of time and are either transferred or being transferred to the U.S.

B. The second preference category, EB-2: Workers with advanced degrees or exceptional ability is for:

1. Professionals holding advanced degrees (e.g., graduate level degrees or professional degrees requiring postgraduate education, such as law or medicine) or their equivalent, or
2. Aliens of exceptional ability “who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.” INA § (b)(2)(A).

If you do not hold an advanced degree but have a bachelor’s degree followed by at least five (5) years of work experience in a professional position either here in the US or abroad, then you may qualify for the EB-2 category because your work experience may be considered equivalent to the advanced degree.

C. The third preference category, EB-3: Skilled, professionals or other workers, include:

1. Skilled workers,
2. Professional workers, and
3. Unskilled workers without advanced degrees.

INA § (b)(3) defines the three (3) categories as follows:

1. A skilled worker is someone who is “capable, at the time of petitioning of this classification, of performing skilled labor (requiring at least 2 years of training or experience)”.  Examples of skilled workers include chefs, graphic designers and journalists.
2. A professional worker is a “qualified immigrant who holds baccalaureate degrees and who are members of the professions.”  Examples of professional workers include accountants, pharmacists, and fashion designers.
3. An unskilled worker is someone who is “capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.”  Examples of an unskilled worker include nannies, housekeepers, and farm workers.

All three (3) categories require labor certifications and draw green cards from the same annual allotment.    Unskilled workers, however, are allocated the fewest number of green cards than the other two subcategories within the EB-3.

A labor certification is basically an official recognition by the U.S. Department of Labor that there are no able, willing, qualified and available U.S. workers for the position offered.  Employers must provide proof of this through a recruitment campaign, which should include advertisements in newspapers, the Internet, and employment agencies.  All labor certifications must be filed under the Program Electronic Review Management (“PERM”) regulations.

D. The fourth preference category, EB-4: Certain Special Immigrants, which includes religious workers and various miscellaneous categories of workers and individuals.  Religious workers include ministers and religious professionals.  Examples of other individuals included in this category are former U.S. government workers and children dependent on the U.S. foster care system.

E. The fifth preference category, EB-5: Employment Creation, is available for investors who are willing to invest a minimum of $500,000 to $1,000,000 in a new U.S. business that will create jobs.

If you do not fit into any of the employment-based green card categories, then you may be able to qualify for an employment-based visa.  In the meantime, for more information about any one of the employment-based green card preference categories, please feel free to contact us at info@cftienlaw.com.

The H1B cap for FY 2010 was reached on December 21, 2009. Final FY10 cap announcement was made by USCIS on December 22, 2009.  Any cap-subject cases filed after December 21, 2009 will be returned to the filer.

For those of you who missed the FY2010 H1B cap, it is time to start preparing for the H1B FY2010 Cap Petitions.  First day of filing will be on April 1, 2010.  If you’re not sure what to do, stay tuned for more information about a FREE Educational Seminar that we will be hosting for both H-1B employees and employers.

In our last post, I introduced the different categories of Family-Based Residency. To review the different categories, you may click here for the post http://www.cftienlaw.com/blog/2009/12/getting-a-green-card-series-part-1/.

Today, we will discuss the quota system and how it affects the Family-Based Green Card petitions. First, if you’re an immediate relative of a U.S. Citizen, then you do not have to worry about the quota system because there are visa numbers immediately available to you.

If you’re in one of the preference categories, however, the quota system may affect your Green Card application because you are subject to the yearly quota of visa numbers available per year for each preference category. Therefore, you will have to wait until your priority number is current. The waiting period depends on your particular preference category. The lower your preference category, the longer you wait. For example, if you’re in the Fourth (4th) Preference category, your waiting period will be longer than those in the First (1st) Preference category. You can check the wait time by visiting USCIS’s Visa Bulletin at http://travel.state.gov/visa/frvi/bulletin/bulletin_4539.html.

Have more questions about the quota system? Please post a comment or contact us at info@cftienlaw.com.

This is the first post in the “Getting a Green Card Series”, where I will review the green card application process.  As I mentioned in one of my previous posts (http://bit.ly/2EHFpt), the Green Card is a registration card that is issued by the United States Citizenship and Immigration Services (”USCIS”) to Legal Permanent Residents of the United States.  It identifies the cardholder as an alien with permanent resident status in the United States.

So, you may be wondering, “How do I get a green card?”  The first step to getting a green card is to determine if you qualify for one.  There are a number of ways to qualify. Most people get green cards because they are either related to a US Citizen or a permanent resident.  Others may get their green cards through their jobs, or if they have unique education and skills, outstanding talent or a large chunk of cash ready to invest in a business.   Finally, the remaining categories include; visa lottery winners, asylees and refugees, special immigrants (such as religious workers), and individuals who entered the U.S. before January 1, 1972 and have continuously lived in the United States since then.

Family

If you are related to a US Citizen or Permanent Resident, then your family member may sponsor your Family-Based Petition if you belong to one of the following categories of Family-Based Residency:

1. Immediate Relative – spouse, child and parents of U.S. Citizen

2. First Preference – unmarried sons and daughters of US Citizen

3. Second Preference – 2 subcategories:

3A – spouse and unmarried children under 21 years old of permanent residents
3B – unmarried son or daughter of any age of permanent residents

4. Third Preference – married sons or daughters of US Citizens

5. Fourth Preference – brothers and sisters of U.S. Citizens

In our next post, we will define each category and explain the Quota System for Family-Based Green Card Petitions.

As of 11/20,  approximately 56,900 H-1B cap-subject petitions have been filed.  You can read more about it here: http://bit.ly/7yx0Ev.

During these tough economic times, layoffs are common and employers who hire (or have hired) foreign nationals must be aware of recent actions taken by the USDOL, as well as the decisions by the US Department of Labor.

Employers are permitted to hire foreign national workers in certain occupations under the H-1B visa classification.  These employers of H-1B or H-1B1 workers must meet certain prerequisites, including the wage payment obligations under the H1B and LCA documents.  Therefore, any underpayment of the prevailing wages or nonpayment of wages during bench time may result in a substantial award of back wages and interest penalties.  Likewise, terminations of H-1B employment must be handled carefully, with diligence towards an offer of 1-way airfare to H-1B worker’s home country and notification to USCIS of revocation of the H-1B petition to avoid back wage payment issues.

What happens, however, when employees are “benched” due to lack of work?  Employers must pay the employee’s wage during the employee’s nonproductive status if such status is due to a lack of assigned work, lack of a permit or license, or some other employment-related reason.

If the nonproductive status is due to conditions unrelated to employment which remove the non-immigrant from his/her duties at the employees’ “voluntary request and convenience” or which render them unable to work (i.e., caring for a relative who is ill, maternity leave, or a temporarily incapacitating accident), then the employer will not have to pay the employee’s wage during the employee’s nonproductive status.  Employer will, however, be required to pay employee during annual plant shutdowns or holidays or other events, which affect both US and H-1B workers, even if the US worker is not paid because these events are part of their ordinary course of business.  During this period of time, employers cannot bench or layoff the US worker while H-1B employees continue to work.

How much is the employer required to pay the employee during the non-productive status?  It depends.  The employer is obligated to pay the wage that was designated on the petition.  If the employer indicated a range of hours on the petition, then he or she must pay the employee for the average number of hours he or she ordinarily works.  The employer also should be wary of paying the part-time employee for the amount indicated on the petition if the employee has worked more than the designated part-time hours prior to the start of his or her non-productive status.  Therefore, unless the employer officially terminates the employee’s employment with the firm by (a) issuing a bona fide termination of the employment relationship; and (b) notifying the USCIS that the employment relationship has been terminated so that the H-1B petition can be cancelled, he or she must continue to make diligent efforts to pay the employee during non-productive status, if necessary, to avoid back wage payment issues.

Please feel free to contact The Law Office of Chen Tien with additional questions about H-1B visas or other employment visas.

Permanent Green Cards issued after 1989 usually have 10 year renewal cycles. The expiration date of your Green Card is printed on the front of the card. If your card is expiring, then you can go to the USCIS website (www.uscis.gov) and download Form I-90 (along with its instructions).  You should complete the form and return it to the address listed in the instructions manual, along with the filing fee of $370 ($290 Filing Fee and $80 Biometrics Fee*) at least 6 months before the expiration date printed on your Green Card. 

If you have a Conditional Green Card and your status is expiring, you should not use the I-90.  You must use Form I-751 if you became a conditional resident through marriage to a U.S. citizen or permanent resident or Form I-829 if you became a conditional resident based on a financial investment in a U.S. business.

*Biometrics fee may be waived under certain circumstances so check the instructions before you write your check.

Click here to read more of my Twitterview with @22twts about my practice:

http://22tweets.com/index.php/2009/08/20/jeantien/

Let’s start with basics: an Affidavit of Support is a legally required document to be completed by the petitioning sponsor in most Family-Based Green Card cases.  A “petitioning sponsor” is a person who has filed an USCIS-approved immigrant petition.  If an Affidavit of Support is required for your application, then your petitioner must be able to prove that he or she is able to meet the minimum income requirement.  Specifically, your petitioner must make at least 125%* of the federal poverty guidelines (which you can access here for 2009: http://aspe.hhs.gov/poverty/09poverty.shtml).   If your petitioner’s income does not meet the income requirement, then there are a number of other alternatives to assist him or her with the requirement.  For example, your petitioner can meet the requirement by including income from relatives or dependents listed on his or her Federal Income Tax return or by finding a co-sponsor who will also need to submit an affidavit.  Your co-sponsor must be a US Citizen, national or Permanent Resident, at least 18 years old and be able to meet the income requirements on his or her own.  However, he or she does not have to be related to you, the intending immigrant.

*If you are an active member of the armed forces petitioning for a spouse or child, then you only need to show support at 100% of the poverty level.

Please contact our firm for more information about the Affidavit of Support or about the sponsor or co-sponsor’s responsibilities.