EAD – Renew Early

U.S. Citizenship and Immigration Services (USCIS)  is reminding recipients of Deferred Action for Childhood Arrivals (DACA) that their current period of DACA and employment authorization could expire if they wait too long to request renewal.

Please apply for a renewal at least 150 to 120 days before your current period of DACA and employment authorization will expire. Timely filing will help ensure USCIS has sufficient time to consider your request.  On March 27, 2015, USCIS began mailing renewal reminder notices to DACA recipients 180 days prior to the expiration date of their current period of DACA. Previously, these reminder notices were mailed 100 days in advance.

USCIS is accepting initial and renewal requests for two-year grants of DACA under the guidelines established in 2012. A federal district court order issued on February 16, 2015, enjoining USCIS from implementing the expanded DACA guidelines did not impact USCIS’ ability to continue processing DACA requests under the 2012 guidelines.

Applicants can request renewal of DACA if the initial DACA guidelines are met and the applicant:

  • Did not depart the United States on or after August 15, 2012, without advance parole;
  • Has continuously resided in the United States since submitting the most recent, approved DACA request, up to the present time; and
  • Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Call or email Mahadevan Law Office at 314 74 8784 or nsm@mlolaw.us

Nalini S Mahadevan, JD, MBA

Attorney at Law.

Not meant as legal advice!

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Midterm Elections Issue: Immigration

Midterm elections are next week; the hot-ticket issue this time around is immigration reform, which has proved to be a very explosive issue for both political parties. President Obama has decided that he will take immigration reform head-on only after midterm elections are over.

The political pundits say the Republicans are slated to win both House and Senate.  Either way, immigration reform will happen whether Republicans or Democrats retain the Senate or House.

If the Republicans win the Senate, then they have to do something to woo the immigrant vote, which is 10% Latino. South Asians and Southeast Asians have also increased their voting numbers. Both these populations want immigration reform to happen because they all have family or friends who may benefit. American business needs tech workers in both healthcare and business. If the Democrats win, Obama will preserve the immigrant vote by executing immigration reform by Executive Order, increasing the number of H1B visas and giving H4 visa holders employment authorization like he did for ‘dreamers.’

Under Republican leadership, the US could increase border security with a virtual wall, and create more visas for H2B and H1B because of the demand and because it is cheaper to monitor the visa issue rather than spend billions on border security, which is found to be full of holes (pun unintended!).

Immigration reform is on its way!

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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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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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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Can OPT lead to H1B?

As we get into the H1B filing season for 2015 (H1Bs are filed in 2014 for the following year), students on F1 visas and their employers are anxious about being selected in the H1B lottery.

This year like last, I suspect the demand will overwhelm availability of H1B visas for student and other applicants. Last year, USCIS received 124,000 applications for 65,000 H1B visas, including 20,000 H1B visas set aside for US Master degree holders.

STEM Students

STEM (science, technology, engineering and math) students are at an advantage. They are able to avail of OPT (optional practical training) for 29 months, and hence get two bites of the H1B apple. They can apply this year and the next while maintaining status in F visa and being lawfully present in the US.

The advantage is that the student:

  • Can work full time.
  • Would qualify for the cap gap extension.
  • Can apply for the 17-month extension

The Takeaway

In essence, a STEM student on 29 month OPT gets 2 bites of the H1B apple, because the sponsoring employer is able to apply again the following year if the student is not selected in the H1B lottery the first time.

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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Same Sex Couples Filing Jointly in 2014

For the first time in US history, same-sex couples can file federal taxes jointly just like heterosexual married couples in the US. This is the outcome of a ruling by the US Supreme Court in United States v. Windsor, where a same-sex marriage was recognized by the US federal government for the first time as a basis for a same-sex spouse being eligible for recognition under federal law.

Filing in 2014

This year, same-sex spouses can apply to file federal taxes just like a married couple filing jointly. In order to be eligible for this status, there are a few prerequisites:

  1. The marriage must have occurred either in 2013 or in a prior year;
  2. The marriage must have occurred in a jurisdiction either in the US or abroad;
  3. The jurisdiction of marriage must recognize same-sex marriage;
  4. However, same sex couples in a civil union or domestic partnerships, are not eligible to file taxes jointly as a married couple. They are still unmarried individuals for federal tax purposes.

Takeaway

Filing jointly could be a smart choice because of lower tax implications of joint filing.

See also:

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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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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USCIS releases FAQ on Immigration Benefits for Same Sex Marriages

USCIS Makes Good on its Promise

After the Defense of Marriage Act (DOMA) was struck down as unconstitutional, USCIS issued a two-point FAQ today on filing for same-sex spouses. Secretary of Homeland Security Janet Napolitano issued the following statement:

“After last week’s decision by the Supreme Court holding that Section 3 of DOMA is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed USCIS to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Now Same-Sex Partners can be Sponsored for Immigration Benefits

US citizens married to a same-sex spouse can now sponsor them for a family-based immigrant visa, both overseas and in the US. They can file the petition for a green card and any accompanying application. Eligibility will be determined according to applicable immigration law, and will not be automatically denied as a result of the same-sex nature of the marriage.

Jurisdictional Issues

If the marriage was celebrated in a state that recognizes same-sex marriages, but domicile in a state where recognition is not legal, some deference will be given to the ‘Full Faith & Credit Clause’ of the US Constitution. This allows the couple to file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the state where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, USCIS may provide further guidance on this question in the future.

Questions Remaining

Can fiance petitions be filed for same-sex couples? Will a couples’ consular processing for these benefits be accorded the same deference by the Department of State? I suspect that issues of marriage fraud will be applied with equal vigor to these cases as well.

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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