New Look to Green Cards & EAD Cards  

USCIS will start issuing redesigned cards with enhanced graphics to applicants.  The new cards will start being issued on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant to prevent document tampering, counterfeiting and fraud; than the ones currently in use.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card.

Employers, please note that both the older version and the new cards are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).

Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid.

Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

Nalini S Mahadevan, JD, MBA ▪ nsm@mlolaw.us ▪ Office: 314.932.7111 & 314.402.2024

Disclaimer:  Not meant as legal advice! For information purposes only.

 

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Pointers for Corporate Executives Applying for U.S. Citizenship

Are you a globetrotting corporate executive, here in the America one day and the next in China or Europe?

Do you have permanent residency in America?

If you answered in the affirmative, then we need to talk and plan.

Plan your stay in the U.S. and travel outside the country, so that you have at least 6 months during a calendar year in the U.S.

If there is a possibility of being transferred overseas to another country for a new job with your American company, file an application to preserve U.S. residency.

Join Global Entry to bypass long lines at international and domestic airports.

Lastly, don’t forget your family.  Update their green cards if they were issued when the children were little.  That may avoid an unpleasant interview when they enter the U.S.   Apply for re-entry permits for your family if they plan on staying overseas for a year or more while you travel.

Nalini Mahadevan, JD, MBA   Attorney, MLO Law LLC

www.mlolaw.us      nsm@mlolaw.us    314.932.7111

Of course this is not meant as legal advice, but information shared in the expectation it may help employers, employees and their representatives.

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USCIS wants to increase fees!

USCIS proposes increasing filing fees of a lot of commonly used applications.  Most of them are for business immigration filings and family based immigration applications.  See some of the proposed fee increases below.

You can make a comment on the fee increase until July 5, 2016. USCIS depends on the fees to pay for its services. So USCIS was one of the few agencies not affected by the government shut down last year.

Proposed fees

Form Purpose Current Fee Proposed Increase Change
I-129 For Worker $325 $460 +$135
I-130 For Family immigration $420 $535 +$115
I-140 For Work based immigration $580 $700 +$120
I-485 Work/Family GC* $1,070 $1,225 +$155
I-539 Change visas $290 $370 +$80
I-765 Work authorization $385 $410 +$30
I-90 Renew GC $365 $455 +$90
I-129F Fiancé Visa $340 $535 +$195
I-751 Get a 10 year GC* $505 $595 +$90
N-400 Naturalize $595 $640 +$45
N-600 Citizenship Certificate $600 $1170 +$570

*Green Card

Nalini S Mahadevan, Esq

P: 314.932.7111  nsm@mlolaw.us   www.mlolaw.us

Disclaimer: Please do not rely on this blog for legal advice.  Call me if you want to get advice and sign an engagement letter with my law firm.

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National Visa Center Does Not Want Your Originals!

It has been a big pain to ask clients to send their original documents via mail from overseas for submission to the National Visa Center (NVC). It’s painful because clients are afraid that their documents can be lost in the mail, in their own country, or in the US Attorney’s office, which has to exercise care so that original documents are not lost. Finally, sometimes originals are not returned to clients after the interview by the consular officer interviewing them in the foreign country. For elderly clients who have submitted original documents from countries where they no longer reside, and these documents are over 50 years old, submitting originals to NVC poses a real issue.

Finally, NVC has woken up to the reality of paper, original document preservation and handling, and the burden that it imposes on all concerned. Since the consular officer can examine the originals brought in by the applicant, there seems no reason for original documents to be sent to NVC in the US, only to have them turned around and sent back to where they came from!

Thank you Department of State for finally waking up to reality!

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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Using an L Visa to Open a New US Office

Opening a New Office in the US

I often get asked this question from callers anxious to start a new business in the US, “I have a thriving business in (fill in the name of the country) — a large part of my business is in the US. I want to start a new office there. How do I start a new office?”

Have a US Connection

The new US office must have a corporate relationship with your foreign entity abroad, where you have been employed as a manager, executive or worker with specialized knowledge. This means that the new US office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the US office and the foreign entity must continue to share common ownership and control.

Demonstrating a Relationship Between the Foreign and US Offices

Here are some examples of how a relationship can be demonstrated between the US and foreign office:

  • Articles of incorporation showing common ownership of the US and foreign entities
  • Business licenses or other documents showing common ownership of the US entity
  • Annual reports describing the corporate structure
  • Contracts or other documents detailing the affiliate relationship
  • Corporate filings in the US or abroad, describing the corporate relationship
  • Any other evidence demonstrating ownership and control over the US and foreign entities (i.e., stock purchase agreements, voting rights agreements, capitalization table, term sheet) 

Demonstrate Foreign Employment as a Manager, Executive or Specialized Knowledge Worker

Examples of your foreign position:

  • Organization charts showing your position
  • Patents or other evidence of the company’s technology, products or services that are based on your work
  • Performance reviews
  • Loans/financing on behalf of the company
  • Organizational job descriptions for your position and those positions that reported above and/or below you, if applicable
  • Resume describing your job accomplishments
  • Pay stubs
  • Evidence of work product
  • Payroll records
  • Tax returns that show employment

The New Office Must be Operating Within One Year

The “new office” L-1 visa is meant to facilitate a “ramp up” period for a new US office of a foreign entity. This period is limited to one year. After that time, an extension of the L-1 visa is available if the new office meets this requirement. What makes an office active and operating will differ depending on the nature of the business. Typically it will involve factors, such as hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable.

The New Office Must be Able to Support a Full Time Manager or Executive

While a new office may be opened on an L-1 visa by someone working within your organization in a managerial, executive or specialized-knowledge capacity, after one year the office must be sufficiently active to support a manager or executive. During the first year ramp up, a manager or executive may be required, as a practical matter, to engage in many “hands-on” tasks that go beyond inherently managerial or executive tasks. After the first year, however, the manager or executive will be required to focus primarily on managerial or executive tasks in order to obtain an extension of the L-1 visa.

Examples of Evidence of a New Office are:

  • Purchase orders, contracts or other evidence of commercial activity
  • Payroll records for employees hired
  • Bank statements
  • Financial reporting documents showing monthly income
  • Continued venture capital or other third party investment contribution based on achieved milestones
  • Media coverage of the business
  • Position descriptions providing the roles and responsibilities of all current employees, or other evidence which clearly demonstrates how the manager or executive is relieved of non-qualifying duties

The Takeaway

New office L-1 visas are usually granted for one year to qualified applicants. The denial rate in India is generally about 25%. There is a general belief in both the Department of State and USCIS that the incidence of fraud is very high in India, due to the falsification of evidence and supporting documents.

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 2014. All rights reserved.

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Special Immigrant Status for Iraqi Nationals

The US government passed Public Law 110-181, which will permit Iraqi nationals, who assisted and were employed by the US government in Iraq for one year and can prove it (i.e. have evidence of their employment), to apply for an immigrant visa to the US.

Yesterday, USCIS announced that Congress has passed a bill extending the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for, or on behalf of, the US government. The President signed the extended bill into law on Oct. 4, 2013.

This program covers Iraqi nationals who — during the period between March 20, 2003 and Sept. 30, 2013 — were employed by, or on behalf of, the US government in Iraq for a period of at least one year. It was created by section 1244 of Public Law 110-181, as amended by Public Law 110-242. The program had expired with respect to principal applicants on Sept. 30, 2013, but has now been extended.

The extension permits USCIS to approve petitions or applications for visas, or adjustment of status to lawful permanent resident in any Iraqi SIV case under section 1244, which were pending with USCIS or with the Department of State (DOS) when the program expired on Sept. 30, 2013. USCIS may also approve an additional 2,000 cases, as long as the initial applications to the DOS Chief-of-Mission in Iraq are made by Dec. 31, 2013.

Spouses and children of principal Iraqi SIVs are also eligible for SIV status. They can continue to make applications, and there is no numerical quota for the number of visas that can be issued to spouses and children of SIV.

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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Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

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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ICE’s Official Guidelines for Electronic I-9 System Audits

In response to an electronic Forms I-9 provider, US Immigration and Customs (ICE) issued guidelines for maintaining an electronic I-9 system for employers.

In early October, ICE issued their official guidelines for assessing electronic Form I-9 systems in an audit. These guidelines tell Homeland Security Investigator (HSI) agents and auditors what Form I-9 information to gather from employers’ electronic systems – guidelines that also help HSI agents to determine I-9 related fines, based on electronic I-9 requirements.

Though ICE has been continually augmenting regulations for its two-year-old electronic I-9 system, storing Forms I-9 electronically is still an employer’s safest bet. Storing Forms I-9 electronically helps to minimize paperwork and paperwork errors; it also allows for easier management and incorporation of E-Verify, which saves time and prevents variances.

A New Framework

In an effort to streamline their I-9 audit procedures, ICE has created a new framework for assessing I-9 systems. If you’re sent a Notice of Inspection (NOI), these are the things you need to know:

1. Audit Trail

Full electronic I-9 compliance means employers must have an audit trail. ICE guidelines require an employer’s electronic system to make a secure and permanent record – and for this record to reflect the date of use, why it was used and what it was used for – when an electronic Form I-9 is created or changed. Since this is the number one investigative method for ICE, it should be an employer’s number one priority.

In order to show the audit trail, specific actions should be taken by an employer when creating and managing Form I-9. A thorough electronic I-9 system will record:

    • the creation of a form for an employee
    • personal information, employee testimony, electronic signatures and dates, any further documentation
    • any updated or altered information

Such a trail is needed so that ICE agents can determine whether an employer’s practices are in compliance with ICE regulations, and whether ICE must issue civil fines.

2. Software Provider & Operating Procedure

When an employer receives an NOI, ICE will ask for the name of the employer’s electronic I-9 system software provider. ICE needs this information so that the agents can gain a better understanding of how the system functions.

In an audit, the employer will have to provide a thorough explanation of their operating system. The employer should make ICE’s job as easy as possible; the employer’s chosen system should be simple and easy to use.

3. Indexing System

Indexing systems catalog employees by name and other attributes, which is helpful in the case of an ICE audit. Employers must make sure that their indexing systems have safeguards that can avoid duplication of employees or Forms I-9. Employers should steer away from systems that merge payroll, tax and employment verification with Forms I-9 – these different areas of information should be stored separately.

4. Electronic Signature

ICE’s regulations on electronic signatures are somewhat unclear. What is clear is that employers must develop a standard procedure for acquiring an employee’s electronic signature, and must guarantee that the signature on the Form I-9 is actually the employee’s. ICE will inspect electronic signatures to ensure that the “significance”– that the employee understands what he/she is signing – has been maintained.

5. Hardcopies

ICE regulations require that an employer’s operating system be able to produce hardcopies of electronic Forms I-9; the best systems will allow the employer to download a PDF version of electronic records.

6. System Demonstration

A system demonstration doesn’t seem like a necessity, but sometimes software vendors have a knack for misleading their customers. For a better user experience, some vendors have added fields, which are not on the original Form I-9; or they have moved fields around – i.e. fields from section 2 are in section 1. Such renderings can sometimes lead to accidental in compliance, and alter the meaning of the form.

Conclusion

While many employers are in favor of electronic I-9 systems – it reduces paperwork and is easily accessible – let us remember two cases. The first is the case of Abercrombie & Fitch, where the electronic I-9 system erased several employees’ records and the company was unable to produce them in reply to an NOI from ICE. The second is the case of UCSD Medical Center, where the electronic I-9 system prompted HR to ask for documents that were not required from naturalized citizens and permanent residents, leading to charges of document abuse and monetary fines.

Different electronic vendors have different programs – before entering into or storing Form I-9 electronically, the employer needs to do some due diligence to ensure the program follows compliance procedures mandated by ICE. It’s best to consult an immigration attorney when previewing an electronic system.

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 2012. All rights reserved.

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What An Employer Should Do Now that H-1B Visas are Over

As of December 1, 2011, the US Consulate General in Chennai will process all Blanket L Visas. The New Delhi US Embassy and Mumbai, Kolkata and Hyderabad US Consulates no longer process petitions for Blanket L Visas. Visas for dependent spouse and children (L-2) and individual visas (L-1A and L-1B) can still be processed at the Chennai, Hyderabad, Kolkata, Mumbai and New Delhi posts.

What is a Blanket L Visa?

A Blanket L visa is available to employees whose employers hold such a designation to file L visas under a Blanket L permit, issued by the Department of State. To be eligible, an employer must be in business in the US for more than one year; have three or more domestic or foreign, subsidiaries or affiliates; and be engaged in commercial trade or services. The employer must also have annual US sales of $25 million; a US workforce of 1,000 employees; or the employer should have received at least 10 L petitions in the last 12 months. An employer may be in danger of losing their Blanket L permit if they file fewer than 10 petitions in the prior year. Only commercial employers can be approved for a Blanket L permit; non-profits are not eligible.

Blanket L visas are for employees who have, in the three past years, been employed abroad for one year and will continue to be employed by the same company in the US. Employees can either be petitioned individually or under a blanket, and must meet the criteria of a “specialized knowledge” professional, executive or manager.

Three Major Issues

1. Will the L visa employee work at client sites?

If your answer is yes, then you must establish an employer-employee relationship during the time the employee is working at a third party worksite on behalf of the petitioner (employer). If the employee is to work in the office of the L visa employer, then that fact should be made very clear both in the documentation and at the interview. Consular officers are very concerned about L visas being misused by employers and being used when H-1B visas are no longer available.

At the US Consulate, the employee is often asked to go up to a window to answer questions. The interview is about 5 minutes, and very often consular officers may not have the time to read the entire petition. If the employee is to work on a particular project at a site other than the US employer’s offices, that fact should also be presented both at the interview and substantiated in the application.

L visa employees must be ready to answer any and all questions, and justify the reason for working at a end-client’s office instead of working at the L visa employer’s office.

2. Is the salary of an ordinary programmer or of a specialist in an L-1B visa category?

Salary earnings in India are indicative of the level of services an employee provides for his/her company; there is certainly a difference between IT workers who complete general services and those who have specialized knowledge. If the applicant is earning a sizeable salary, it is important to state the applicant’s salary in the support letter; salaries are often indicative of a specialist eligible for an L-1B visa instead of a programmer more suited to H-1B visa category status.

It is these distinctions that have caused a rise in the denial rate, 27%, of all filed L visa applications.

3. Is the applicant’s work in India not indicative of a specialized job?

The consular officers will most likely deduce that the applicant has no specialized knowledge if the applicant’s work in India is based in general services. This can include testing; enterprise recourse planning maintenance; or execution of Oracle, Microsoft or SAP software.

Experience

L-1B visa holders are supposed to be specialists; if the applicant has a three-year degree and one year of experience, then the consular officer is not likely to consider the applicant experienced enough to warrant an L-1B visa approval. The standard by which L visa applications are approved is “clearly approvable”. Hence, the burden of proving L visa eligibility lies with the employer. If the L visa has been approved by USCIS, the US Consulate may grant the L visa unless special circumstances exist, or the consulate determines more evidence is required.

We live in a climate where no USCIS application is sacrosanct, and where the Department of State often re-adjudicates USCIS approvals.

B-1 In Lieu of H-1B

The B-1 In Lieu of H-1B visa is a hybrid visa, a cross between a business visa and an employment visa in the US. The employee with H-1B visa qualifications comes to the US instead on a business visa (B-1), applies for the visa at the consulate and declares intent at the border. This employee cannot receive any remuneration in the US other than an expense allowance.

However, this visa is under attack. Employers should demonstrate that there are unexpected circumstances and an urgent need for the employee to obtain a B-1 Visa In Lieu of an H-1B. The controversy arises over the extent to which the B-1 visa is used or misused in lieu of an H-1B. Even if the consulate grants this visa, it is likely that the visa holder may encounter difficulty at the US port of entry.

True need for the visa must be well-planned to demonstrate the benefit of the short-term visit to the foreign employer, as opposed to the US client.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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