Wanted: A Few Good Immigrants for the U.S. Military in Exchange for U.S. Citizenship

On February 15, 2009, the New York Times reports:

"The Army’s one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Army’s program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days."

Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months." http://www.nytimes.com/2009/02/15/us/15immig.html?scp=3&sq=immigrants&st=cse

FYI, the U.S. military has always had authority in wars to enlist nonimmigrants and people who entered illegally.

Naturalization

Naturalization applicants in San Francisco are now swearing in as U.S. citizens in Oakland. All ceremonies will now take place at the Paramount Theatre in Oakland.

Naturalization applications are currently taking about three to four months to process in San Francisco. San Jose office processing time is approximately four to five months.

The USCIS has a new set of naturalization questions – a little harder than in the past but they are similar.

Martin

Investor Visas

Individuals who seek to apply for green cards as an EB-5 investor based on their $500,000 or $1 million investment in their own business (as opposed to a regional center) should choose a business accountant carefully to work with the individual’s immigration attorney. The primary evidence that the government will look at to determine if the individual has invested the requisite $500,000 or $1 million is the business’s tax returns. Often accountants try to lower the business’s taxes by classifying the individual’s contributions to the business in ways which may be good for taxes but in doing so may hurt the individual’s EB-5 application. For more information on investor visas see www.aboutvisas.com.

Martin

H-1B Dance

Possible strategy tip:

The government rules say that one may extend H-1B status beyond the 6 year limit if a labor certification is filed for a green card before the end of the 5th year of H-1B status. If one decides to apply for a labor certification and it cannot get on file before the end of the 5th year, one alternative is for the foreign national to depart the U.S. before the end of the 5th year for a few weeks or months until the labor certification is filed and then return. Time out of the U.S. will not count toward the 6 years. Thus, if this dance is done in time, it will preserve the ability to extend the H-1B beyond the 6 year limit.

Martin

Can I Volunteer?

Lately a number of people have asked me whether a nonimmigrant visa holder can “work for free,” or just stock options?

All workers in the U.S. are required by law to prove they have a right to work at the time they take up new employment, U.S. citizens and green card holders included. Nonimmigrants must have work authorization. Employment is defined in the USCIS regulations as providing services for wages or “other remuneration.” So, if one works for stock, a place to live or another benefit, that is employment requiring a work permit.

One can volunteer. I volunteered at a lawyer’s office in Washington, D.C. for a few months when in college. It was educational not work. But if one is waiting tables at a restaurant, no one will believe the work is for free. A gray area is where a PhD researcher gives some advice to a new start up. If they do so for stock options that is employment. If they do so out of friendship, it is probably OK. Helping out without pay at Habitat for Humanity or the local sustainability group is also OK.

Martin

Electronic System for Visa Waiver Travel Authorization

Beginning January 12, 2009, all visitors entering the US under the visa waiver program are now required to register with US Customs and Border Patrol prior to travel through the newly-created Electronic System for Travel Authorization (ESTA).

ESTA is an automated system that will determine whether a traveler is eligible to enter the US using the visa waiver program and is otherwise admissible. To register, go to: www.cbp.gov/esta and obtain pre-travel authorization. To complete the registration, the traveler must submit biographic information and answer questions. Most applicants receive an immediate decision. If an application is denied, the traveler must apply for a visitor's visa at the US Consulate. An ESTA is valid for two years. New reports say that people not aware of ESTA are being admitted with a warning to use the new system.

Martin

Facing the Future

What does the future hold for visas and green cards? No one really knows. But here are some thoughts based on conversations I had with people in Congress and at USCIS.

Short term. Using a team of temporary officers, USCIS is quickly processing the backlog of naturalization cases. This project will be complete soon. The team will then be assigned to clear out the backlog of adjustment of status (green card) cases.

The Department of Labor's processing of labor certifications is slowing. This agency as a whole seems to be going in reverse. It may even return to supervised recruitment which is the method used before PERM started about a decade ago.

Mid term. Due to the economy and increased influence of the unions with the Democratic Congress, there is little likelihood of more temporary work visas such as H-1Bs in the short term.

A recent USCIS study of H-1B visas found 21% had either technical violations of the rules or were fraudulent. Some in Congress now say there is an "H-1B problem." This bodes poorly for legislation increasing H-1B visa numbers.

Long term. Congress may provide some relief to technology companies and immigrating professionals by creating a new visa to bridge the gap between filing for a green card and its issuance. This is an interesting concept which might replace the H-1B visa for many.

Congress is working on a bill to recapture about 500,000 unused green card visa numbers lost due to slow processing after 9/11. If this bill passes, it will speed the processing of the EB-3 category for all and the EB-2 for China and India which are quite backlogged. Many agree that change is needed so the U.S. can more easily retain recent technology graduates as well as those with MS and Ph.D. degrees.