Obamacare Works for Green Card Holder

A client for whom we applied and received US legal permanent residency, just received health insurance under the Affordable Care Act (ACA), or Obamacare.

Client was found by the federal and state government to be ineligible to receive health insurance benefits. This prerequisite made the client eligible for health insurance.

Make an appointment at www.mlolaw.us

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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I Lost My Indian Passport — Help!

Recently, I have been getting referrals from clients about losing their passport from India. Now, losing an Indian passport is a greater deal than losing your US Passport, because there is an established procedure for recovery and reissue of a US Passport.

But recovery and reissue of an Indian Passport is another matter.

The fear of clients who contact me is that they will be turned into either ICE or USCIS because they are out of service. The good news is that there is now a procedure to reapply for a lost passport. However, it is complex.

In my experience, there is a better procedure if your application is filed as a walk-in rather than mailing in the application.

The next complexity is added because the Indian consulate does not update their website often. The result is that the information on the website is often unreliable or out of date. If my client is traveling from outside the consulate area, then I suggest planning the trip in advance to allow for contingencies, such as insufficient paperwork.

Contact us for further information.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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TN and L Visa Holders Enter at Select Ports of Entry to US from Canada

Beginning in mid-September, US Customs and Border Protection (CBP) is streamlining the entry process for first-time Canadian TN and L applicants seeking entry into the US under NAFTA. CBP has designated ports of entry that will ensure a more efficient approach to processing the high volume of TN and L applicants.

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the US to engage in business activities at a professional level. The L-1 nonimmigrant classification — Intracompany Transferee Executive or Manager — enables a US employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the US. This classification also enables a foreign company that does not yet have an affiliated US office to send an executive or manager to the US with the purpose of establishing one.

While there is no requirement to go to these designated ports of entry, first-time applicants are encouraged to enter through these ports for ‘optimized processing’ at 14 ports, including 4 pre-clearance centers.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Secretary Johnson Announces Process for DACA Renewal

In early June, Secretary of Homeland Security Jeh Johnson released the procedure for individuals to renew their enrollment in the Deferred Action for Childhood Arrivals (DACA) program. The Federal Register now has the updated form that individuals, who were already enrolled in DACA, can use to extend their deferral for two years. USCIS has already begun taking forms for renewal. USCIS is also taking forms from those who were not previously enrolled in DACA. Over 560,000 individuals have enrolled in DACA since April 2014.

The DACA approvals for those who were already enrolled will start expiring in September 2014. To prevent deferral and an interruption in employment authorization, individuals must re-enroll for the program before their approvals expire—according to USCIS, individuals should re-enroll at least 120 days, or four months, before their deferred action lapses.

DACA defers removal action for certain individuals, and allows them to stay in the US and acquire employment authorization for two years. Individuals who were not previously enrolled in DACA, but meet DACA’s guidelines, may still apply for deferral. Only those who have steadily lived in the US since June 15, 2007 are qualified for DACA.

Individuals can re-enroll in DACA if they meet these guidelines:

  • Did not depart the US on or after Aug. 15, 2012, without advance parole;
  • Have continuously resided in the US since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

You may renew your enrollment in DACA by filling out the new Form I-821D “Consideration of Deferred Action for Childhood Arrivals,” Form I-765 “Application for Employment Authorization,” and the I-765 Worksheet. Form I-765 has a filing and biometrics fee of $465. USCIS will also run a background check on DACA renewals.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Massachusetts’ Immigrant Program for Students

Massachusetts has created a loophole program, called Global Entrepreneur in Residence (GER), to permit foreign students to stay legally in the US.

Foreign students who attended college in Massachusetts and who want to pursue entrepreneurial activities in the state can apply to the GER Program, which is being run by the Massachusetts Tech Collaborative, an independent state agency designed to promote the advancement of technology in the state. Chosen individuals will be given a job at a participating universities in Massachusetts—the students will work part-time and will submit visa applications sponsored by the university. The program is expected to grow 46,000 jobs for students.

US immigration law dictates that foreign students can study at US colleges and universities under a student visa—after they graduate, their visas expire and they have to find a US employer to sponsor them for an H-1B visa. The H-1B visa system inherently poses a disadvantage for entrepreneurs, the system only allows for a once-per-year application process—in the form of a lottery—and the slots fill up quickly. On April 7, 2014, USCIS reported that it had secured its quota of 85,000 H-1B visa petitions only five days after it began receiving applications.

This is why the GER Program’s loophole is important: colleges and universities are immune to the cap and can submit applications for employers at any time. This means foreign graduates have a higher chance of obtaining a visa through the GER Program, and through employment with higher-education institutions, because these institutions are exempt from the cap.

The House bill proposed to devise a new category of startup visas for foreign entrepreneurs, while also raising the amount of H-1B visas accessible to immigrants with advanced degrees. While the Massachusetts program is yet to be funded, this is a great start for foreign graduates whom the US needs to retain!

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Alternatives to H1B visas

The H1B visa season is upon us, the filing date was on April 1, 2014, and like last year is expected to be oversubscribed. What visas can a company consider once the H1B visas are exhausted for the season?

This year, let us consider non-H1B countries, where alternative visas are available for skilled workers.

For Mexicans and Canadians

The TN visa under the North American Free Trade Agreement (NAFTA). Until this time, only Canadians could apply directly to the consulate or embassy or enter through the Canadian/US border with the proper credentials.

On February 10th, 2014, the US Department of State published a final rule that Mexicans applying for a TN visa could apply at the consulate or embassy in the US without first seeking approval from USCIS, or before applying for a TN visa at the US embassy or consulate in Mexico.

This is a giant leap forward for immigration, according similar trusted status for citizens south of the border.

Of course, applicants must be sponsored by an employer with a genuine job offer, and job duties must conform to the NAFTA guidelines.

While TN visas require non-immigrant intent—which means the applicant cannot apply for a green card from a TN visa status—the visa allows renewal in the US, and under tax treaties, allows the worker to accumulate the equivalent of Social Security in their country of origin.

There used to be a ceiling on admissions of TN, but that is not the case anymore.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan
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DOMA Issues After the Passage of “US v. Windsor”

The Defense of Marriage Act (DOMA) is a federal law that gives states the choice to deny recognition of same-sex marriages performed under the laws of other states. Same-sex marriage is currently legal in 10 states; the remaining states have various alternatives on the lawfulness of same-sex unions, affecting the distribution of federal benefits for same-sex couples.

Section 3 of DOMA provides a federal definition of “marriage” as the union of a man and woman. In addition, Section 3 prohibits same-sex married couples from being acknowledged as “spouses” in terms of federal laws, for acquiring federal marriage benefits.

Earlier this summer, the constitutionality of DOMA — Section 3 in particular — was addressed in United States v. Windsor in the Supreme Court, where the plaintiff argued that the federal law encroaches on the Constitution’s equal protection clauses.

The plaintiff and her spouse were New York residents, who had legally wed in Canada. As residents of New York, their same-sex marriage was accepted under state law; however, due to Section 3, their marriage was not accepted by federal law. The federal government then taxed the plaintiff’s late spouse’s estate $363,053. If the marriage had been recognized by federal law, the estate wouldn’t be subject to taxes, and would have been authorized for a marital exemption.

In 2012, the New York Court of Appeals ruled that DOMA’s definitional section — Section 3 — was unconstitutional. More recently, the Supreme Court held that DOMA strips persons of the equal liberty protected by the Fifth Amendment.

Now that Section 3 of DOMA has been struck down, several federal benefits and protections of opposite-sex couples have been extended to same-sex couples in state-recognized marriages:

  • Taxes: The Department of Justice and IRS have ruled that same-sex couples, who have been legally married in states that acknowledge those marriages, will be taxed as married couples. This is applicable to same-sex couples who live in a state that recognizes their marriage as well as to same-sex couples who live in a state that doesn’t recognize their marriage.
  • Social Security Benefits: The Social Security Administration (SSA) now acknowledges same-sex marriages for deciding Social Security benefits.
  • Medicare: Private Medicare plan beneficiaries will now receive equal coverage for care in their spouse’s nursing home.
  • US Visas for Same-Sex Spouses: Same-sex couples’ visa applications will now be processed the same as opposite-sex couples.  Both the Department of State and the USCIS will process same sex applications and apply the same standards as would be applicable to a heterosexual marriage.
  • Benefits for Uniformed Service Members: Benefits from the Department of Defense will now apply to same-sex spouses of uniformed service members and civilian employees.
  • Benefits for Federal Employees: Benefits from the Office of Personnel Management will now apply to same-sex marriages of federal employees and annuitants.

Takeaway

This is a huge step towards equal application of the law and attendant benefits to same-sex couples. Many same-sex couples are returning to the US after spending years abroad with their foreign spouse. What a wonderful ending!

Read my other post on DOMA, USCIS releases FAQ on Immigration Benefits for Same Sex Marriages.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Comprehensive Immigration Reform’s Proposed Points System

A new element of the immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act” is coming into play, namely a proposed merit-based points system, similar to ones found in Canada, the UK, Australia and New Zealand. The points system — an immigration-management tool that will be used to decide who is suitable to enter the US — would allocate new immigrant visas to foreign-born people who meet certain criteria. Each year, the new system would allow between 120,000-250,000 immigrants to obtain immigrant visas through an accumulation of points based on skill, employment history and education. This points-based system is intended to replace the current Diversity Visa Lottery.

The “Desired Immigrant”

This points system shows that the US government does indeed favor a particular type of immigrant, a “desired immigrant”. The system would be more beneficial to certain immigrants over others, like those seeking employment-based immigration. Many immigrants would be at a disadvantage, including women, middle aged and older adults, and those from developing nations. The points system would be divided into characteristics that the US considers beneficial in a visa candidate, such as education, occupation, work experience, English language proficiency and age.

The Two Tiers

PointsFig1PointsFig2

During the fifth fiscal year after the immigration reform bill is passed and the points system is introduced, DHS would assign merit-based visas in two “tiers”, and would give 50% of the visas to applicants with the highest number of points in tier 1, and the other 50% to applicants with the highest number of points in tier 2. Tier 1 is for high-skilled workers and tier 2 is for lower-skilled workers.

The points system favors employment and educational categories over the others; and desires immigrants who are educated, experienced, fluent in English, and young. The system seems to be heavily influenced by economics, placing large value in immigrants’ ability to generate economic worth.

Disadvantaged Immigrants

Moreover, the system is biased against women. Women in other countries frequently have less education and work experience opportunities, allowing the points system to naturally favor men. Though Tier 2 acknowledges women by creating a separate caregiver characteristic, it only grants 10 points, which doesn’t count for much when compared to the employment background characteristic, which totals 40 points.

Family-based immigration is also minimized in the system. Similar to the caregiver characteristic, the siblings or adult sons/daughters of US citizens characteristic only receives 10 points, which, again, doesn’t account for a lot. The system also emphasizes age discrimination and nationality bias, by preferring young immigrants who come from countries with low US migration.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Is I-94 so important?

Form I-94 and its Uses

This piece of paper that measures 4×5 inches is how a non-immigrant visa (NIV) holder proves that he or she has exited the country. Clients often call us because they were told when they re-entered the US that they did not surrender their Form I-94 on exit. The paper is also very important to international students because it shows that they are here for the duration of the status of their visa — i.e. they do not have to exit until their program is over, and this stay could, under the right circumstances, exceed the length of their stamped visa. The I-94 is also used for Form I-9 purposes, to record the foreign passport, visa and I-94 number, and serves as a List A document for purposes of worker identity and work authorization. No other document needs to be produced by the worker as eligibility to work, which protects both the employer and employee.

Now with the electronic I-94, the apple cart has been tipped! Years of procedure and practice are to be replaced by a new process that State DMVs, federal agencies and employers need to learn. Software has to be amended to accept electronic I-94 cards.  The good news is that a duplicate I-94 can be printed as long as the NIV is in the US; the I-94 record disappears as soon as the NIV exits the US.

Form I-102 should still be used to correct mistakes in the record (filing fee $330); however, US Customs and Border Protection (CBP) should be contacted in case of mistakes in the I-94 passport stamp. If CBP issued you Form I-94, I-94W, or I-95 with incorrect information (ex: misspelled name, incorrect date of birth, visa classification or date of admission), you should not file Form I-102. You will need to go in person to the nearest CBP port of entry (POE), or the nearest CBP deferred inspection office (DIO), to have the information corrected. For locations and hours of operation, visit CBP’s website at www.cbp.gov.

If you would like more information, please read my overview of electronic I-94.

More resources:
FAQ on what to enter to retrieve an I-94
How to obtain a copy of the new I-94
ICE I-94 Fact Sheet

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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A Second Look at Comprehensive Immigration Reform

In February, I wrote about why comprehensive immigration reform has a chance to pass this year; now, it’s time to discuss how immigration reform can strengthen the US as a whole.

Immigration reform has heavy bipartisan support, spearheaded by President Obama and Republican Sen. Marco Rubio (FL). Sen. Rubio is a member of the “Gang of Eight”, the four Democrat and four Republican Senators who have introduced new immigration legislation to Congress — Rubio has also assumed the role of spokesperson for the pending bill in the Senate. The House is also sponsoring several other bills on immigration.

There are security and economic reasons for the US to reform its immigration policy, both of which will have a major impact on the US economy.

The Security Side and the Impact on Employers

Immigration reform is not going to happen without enhanced border security and metrics to measure the levels of security reached. Another measure of security to guarantee a legal workforce is to make both E-verify and Form I-9 compliance mandatory for all employers.  Senate has already earmarked $110 million dollars to these programs — employers should see new compliance regulations soon after a new immigration bill has passed.

In addition, electronic checking of departures by CBP will ensure that non-immigrants depart on the date their authorized stay expires, according to their Form I-94 record. Departures are currently recorded with a paper I-94, which is surrendered upon exiting the US. The new electronic I-94 will record departures from passenger manifests issued by airlines. Entries are currently recorded, but exits from the US are not recorded uniformly at all ports. In addition, the new bill will mandate that all passports be electronically read, which would reduce human error.

It is a misconception that highly skilled visa holders somehow depress US wages. On the contrary, where certain technical skills are in short supply, employers pay top dollar wages for visa holders and high fees to the federal government, as well as jump through legal hurdles to employ these workers. The cost of employing a foreign worker is more expensive than a domestic worker.

The Economic Side

Granting legal status to more immigrants will relieve our labor shortages in both high-skill and low-skill arenas. The educational background of native-born Americans typically includes high school and college education — few are without high school diplomas, and hardly any have Ph.D.s in science, technology, engineering or mathematics (STEM). The educational background of immigrants, on the other hand, is quite different: while many lack high school education, others hold Ph.D.s in STEM fields.

Most of the debate on immigration reform has focused on giving legal status to undocumented immigrants, upon the condition that they pay fees and back taxes. This will certainly have positive effects on our economy; however, we have more to gain from immigrants, both young and old, who, after gaining legal status, decide to further their careers in the US. Once these immigrants feel reassured about their future in the US, they will be more willing to invest in their careers.

One of our current problems is that many skill workers have trouble gaining a foothold onto the path to citizenship. Foreign entrepreneurs and technologists who study in the US are often denied works visas and return to their home country to find success. This issue is both stunting economic growth and causing a brain drain in America.

The number of available temporary visas is rarely revised and is still dependent upon caps and quotas. Our economic conditions have not been taken into consideration. Increasing visas both for high skilled workers, and lower skilled entrants in agriculture and forestry, could have a positive effect on wages and reduce the number of illegal entrants and overstays.

Immigrants also bolster our productivity growth. According to the Wall Street Journal, foreign scientists and engineers, who came to the US with an H1B visa, contributed 10-20% of the yearly productivity growth in the US from 1990-2010. Attracting innovators to our country will undoubtedly create more jobs, as more innovation means more labs, universities and companies doing research. Yet, the US’s H1B visa program only creates 65,000 visas per year for highly skilled workers. That amount has proved to be insufficient, as H1B visas quotas fill very quickly as in the last cap.

There are clear economic and security needs for streamlined and comprehensive immigration reform, and lawmakers and politicians must take action. Congress is set to vote on immigration reform before the July 4 congressional recess.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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