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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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
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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How Family Law Affects Non Citizens

We have two kinds of people in the United States: US citizens and non citizens. Non citizens can be classified as persons who can stay here permanently, also called permanent residents or immigrants. We call those who have a non immigrant visa – these people may be able to work and some cannot; and those who have overstayed their visa or have entered without US Government visa, illegal aliens. This article discusses the effects of family law action on the immigration status of persons with lawful immigration presence.

Questions from family law practitioners are often about how an action in family court will affect their client’s immigration status. The first step is to recognize the documents and to ask for immigration documents from clients. In our office, we regularly ask for evidence of immigration status in the United States, regardless of accent, education, race or other appearance characteristics. We have clients from Canada who, for all intents and purposes, act like US citizens and those who are US citizens who have accents. So as a matter of procedure, immigration status is a routine question to ask.

Divorce and Annulment
Permanent residents, who are also called ‘green card’ holders in popular parlance, are generally not affected by family court actions like divorce, unless they are a conditional permanent resident. A conditional permanent resident has been married less than two years when they received their ‘green card’ with conditions, which have to be removed within 2 years. A conditional resident can apply for removal of conditions either jointly (which is an easier application) or after they obtain a divorce. Conditional permanent residents are not eligible for a permanent green card valid for 10 years, until they have removed conditions. Conditions can be removed either while being married or after divorce, but not during the pendency of a divorce action[1]. An annulment action negates the marriage, which is the basis of the application for the spousal ‘green card’. So such an action is not recommended for a spouse who is on conditional residency or whose application to USCIS has been based on marriage to a permanent resident or US citizen.

Affidavits of Support
In a divorce action, maintenance and spousal support may be an issue. In family spousal application, an affidavit of support is filed as part of the application package with USCIS[2]. The affidavit of support is filed for the foreign spouse on Form I-864. The sponsor promises to maintain the foreign spouse so that he or she does not become a public charge. There are certain conditions to be fulfilled before this obligation is discharged.  The case discusses the sponsor’s obligations and discharge of duty under the law. In Cheshire v. Cheshire[3], a case in Florida, it was held that pursuant to the INA[4] and the terms of Form I-864, a sponsor’s support obligations to the sponsored immigrant under an affidavit of support terminate only upon the occurrence of one of five circumstances: 1) the sponsor’s death, 2) the sponsored immigrant’s death, 3) the sponsored immigrant becoming a U.S. citizen, 4) the sponsored immigrant permanently departing the U.S., or 5) the sponsored immigrant being credited with a total of 40 qualifying quarters of work, 8 U.S.C. § 1183a(a)(2), (3); 8 C.F.R. § 213a.2(e). The majority of sponsored immigrants will have to work ten years to meet the 40 quarters requirement, as a maximum of four quarters can be earned in a year. However, sponsored immigrants can be credited with quarters earned by the immigrant’s spouse during the marriage, but only if the alien remains married to that spouse. The sponsor’s financial obligations under the affidavit of support terminate only upon the occurrence of one of the five circumstances above; hence divorce does not invalidate the contract created by the affidavit of support. As such, a spouse sponsoring an immigrant spouse can be liable under the affidavit of support even after divorce. The instructions accompanying the affidavit of support, Form I-864, provide that “divorce does not terminate the obligation” of a sponsor to support the sponsored immigrant. Federal courts have found that divorce between a sponsored immigrant and a sponsor does not necessarily negate a sponsor’s financial liability under an affidavit of support[5]. The parties in Cheshire were divorced but that does not alleviate the sponsor’s obligation to support the foreign spouse according to Section 1183(a) and the terms of Form I-864. Family law practitioners could enforce a valid affidavit of support following the guidelines of sponsor’s financial obligations.

Enforcing Child Support
Personal Responsibility and Work Opportunity Act, 1996, Section 652(k) sometimes requires a denial of passport renewal for failure to pay child support. Under this law, there is a possibility of a denial or revocation of passports for individuals who fail to pay child support. Through this law, Congress sought to eliminate entitlements, or cash welfare, to individuals who were dispersed as part of the Social Security Act. Using Temporary Assistance to Needy Families or TANF, Congress attempted improve child support collection rates with the hope that single parent families would move off welfare rolls and remain self-sufficient. The idea was that “States should diligently continue their efforts to enforce child support payments by the non-custodial parent to the custodial parent, regardless of the employment status or location of the non-custodial parent”[6]. To achieve these purposes, the law was designed to encourage states to have similar child support laws, to share information through the Federal government, and to handle interstate child support cases quickly. One of the enforcement measures included a denial by the US Department of State of Passports for nonpayment of child support[7]. Under Section 51.70 (a) (8) of Title 22 of the Code of Federal Regulations, if you are certified to Passport Services by the U.S. Department of Health and Human Services (HHS) to be in arrears of child support payments in excess of $2,500, you are ineligible to receive a U.S. passport. As a practice pointer, may I say that in my experience it is easier to obtain a settlement for your client if the child enforcement department of the state is owed money. In other words, the custodial parent receives public assistance from the state. The state has an interest in collecting and arriving at a settlement; there are no emotions that cloud the issue as in the case of a custodial parent.  Information on child support can be obtained from the appropriate State child support enforcement agency.


[1] USCIS Acting Associate DirectorYates Memo dated April 10, 2003,
[2] United States Citizenship and Immigration Service.
[3] Cheshire v. Cheshire, 895 So. 2d 408 – Fla: Dist. Court of Appeals, 1st Dist. 2005
[4] Immigration and Nationality Act, 1952
[5] Schwartz, 2005 WL 1242171, (finding that “a sponsor and a sponsored immigrant’s divorce does not automatically terminate the sponsor’s obligations under the affidavit of support,” in case where plaintiff, permanent resident alien of the U.S. and defendant’s ex-wife, brought suit against ex-husband sponsor seeking to enforce affidavit of support);Stump, 2005 WL 1290658, (holding former husband, sponsor, liable to former wife, sponsored immigrant, for financial support under terms of affidavit of support where parties’ divorce was pending);Ainsworth, 2004 U.S. Dist. LEXIS 2896, (noting that divorce did not end enforceability of affidavit of support contract).
[6] Reconciliation Committee. “H. Report 104-725”. Retrieved 2011-01-09.
[7] Section III (Child Support), Subtitle G (Enforcement of Child Support) contained 14 enforcement measures to improve the collection of child support, including Denial of Passports for Nonpayment of Child Support in Section 370. Under Section 370, 42 U.S.C. § 652(k)(2) was amended so that the “Secretary of State shall, upon certification by the Secretary transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual.”

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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