Visas

Removing the Conditions on an EB-5 Visa

By Peek & Toland on February 26, 2019

An investor with an EB-5 visa is admitted to the U.S. as a conditional permanent resident. This visa lasts two years. If investors wish to remain in the U.S. at that point, they will need to file a petition with U.S. Citizenship and Immigration Services (USCIS) in order to remove the conditions from their permanent resident status.

Within 90 days of the second anniversary of the date that they were admitted to the U.S. as conditional permanent residents under EB-5 visas, investors should file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status with USCIS. If USCIS grants the petition, the conditions will be removed from the EB-5 visa investor’s permanent residence and any dependents who were included on the visa.

Removing the Conditions on an EB-5 Visa

Along with the petition, you must submit a $3,750 fee, plus a $85 biometrics fee for the petitioner, as well as for each current or former conditional permanent resident spouse or children included on the petition as a dependent. Additionally, you must provide evidence that:

• A lawful business entity has been established in the U.S.
• If applicable, the enterprise was established in a targeted employment area
• The investor has invested or is in the process of investing the amount required for the area in which is the business is located
• The capital used for the investment was earned or derived from lawful means
• The business is expected to create at least 10 full-time positions for American workers
• The investor will be engaged in the day-to-day management of the business operations

When you or a loved one is facing an immigration law dilemma involving an EB-5 visa or another issue, you need legal advice and counsel from experienced Texas immigration attorneys. At Peek & Toland, we are here to help you with your immigration case. We will devote all our efforts to representing your interests, answering your questions, and calming your concerns. Don’t hesitate to contact Peek & Toland and schedule a time to meet with us today. We can help protect your rights and get you the relief that you need.

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Fight Over Work Permits for Spouses of H-1B Visa Workers Rekindles

By Peek & Toland on February 10, 2019

Almost two years ago, the Department of Homeland Security (DHS) announced its intent to strip the spouses of H-1B visa holders of their work authorization. The estimated 90,000 foreign nationals are spouses of skilled guest workers, which include tech workers and medical professionals, were granted H-4 work permits starting in 2015, which made H-1B visas a more attractive option for guest workers with families.

A legal challenge was filed against the work permit program long ago based on displacement of American workers due to the issuance of H-4 work permits. The federal district court ruled against the U.S. workers, and they appealed that decision. This litigation had been on hold since April 2017 to allow the federal government more time to come up with a regulation to end the program. After almost two years, DHS has yet to produce a regulation. However, the U.S. Court of Appeals for the District of Columbia Circuit recently revived the lawsuit by setting briefing deadlines for both sides to the dispute.

Fight Over Work Permits for Spouses of H-1B Visa Workers Rekindles

In response to the newly set lawsuit deadlines, DHS now has been rushing to promulgate a regulation to eliminate the work permit program, with the goal of completing it prior to the briefing deadlines in the lawsuit expiring. The consensus is that DHS would rather eliminate the program completely rather than attempt to defend it in court. The hope of DHS is apparently that the court will defer to the administrative rulemaking process based on its interpretation of the Immigration and Nationality Act. If DHS can publish the regulation in time, then it is widely assumed that the court will again put the lawsuit on hold.

The Peek & Toland immigration lawyers are here to assist you with all your immigration needs. Trust us to represent your interests and advise you of the best course of action in your situation. Set up an appointment to talk to us today and discover how we can assist you with your immigration case.

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How Can I Remove Conditions From My Green Card?

By Peek & Toland on January 24, 2019

When you received your green card, or legal permanent residence in the U.S., you may have been granted conditional residency, which is valid for a period of two years. This can be due to receiving your green card based on marriage or as an entrepreneur. Whatever the case may be, you must take action to remove the conditions from your green card at least 90 days prior to its expiration. Otherwise, you risk losing your green card, no longer having a lawful immigration status, and being potentially subject to removal from the country.

 

How Can I Remove Conditions From My Green Card?

To remove the conditions on your green card due to marriage, you must file Form I-751, Petition to Remove Conditions of Residence. You generally are eligible to remove the conditions on your green card if you are still married to the same U.S. citizen or permanent legal resident after two years, if you are now widowed but entered into the marriage in good faith, your marriage was divorced or annulled, but you entered into the marriage in good faith, or if you entered into the marriage in good faith, but you or your child were battered or subjected to extreme hardship by your spouse. You also can include your children on your petition if they received a conditional green card at the same time that you did. However, if your child received a conditional green card more than 90 days after you did, then the child will need to file a separate Form I-751.

With a few exceptions, you generally must apply together with your spouse to remove the conditions from your green card. If you are no longer married to your spouse or you or your child has been abused by your spouse, then you can apply for a waiver of the joint filing requirement.

When you or a loved one is facing an immigration law dilemma, you need legal advice and counsel from experienced Texas immigration attorneys. At Peek & Toland, we are here to help you with your immigration case. We will devote all our efforts to representing your interests, answering your questions, and calming your concerns. Don’t hesitate to contact Peek & Toland and schedule a time to meet with us today. We can help protect your rights and get you the relief that you need.

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What Are the Two Different Types of Visas for Students to Study in the U.S.?

By Peek & Toland on January 23, 2019

There are two different available options for citizens of other countries who wish to travel to the U.S. to study. Whether these students need a F student visa or an M student visa depends upon their course of study and the kind of institution that they want to attend.

If you want to attend a vocational school or another recognized nonacademic institution, other than a language skills training program, you will need to apply for a M visa. For all other studies at elementary schools, high schools, universities, colleges, seminaries, conservatories, and other academic institutions, including language skills training programs, you will need to apply for a F visa.  

What Are the Two Different Types of Visas for Students to Study in the U.S.?

Your first step to obtain either type of student visa is to apply and be accepted by a Student and Exchange Visitor Program (SEVP)-approved school. You then will be registered for Student and Exchange Visitor Information System (SEVIS) and will pay a SEVIS fee. The school then will issue you a Form-120, which will enable you to make an appointment with a U.S. Embassy or Consulate and apply for either a F or M student visa.

The steps that each U.S. Embassy or Consulate requires you to follow in order to obtain a student visa vary somewhat. In any case, you will need to complete online nonimmigrant visa application, Form DS-60, upload a photo, and bring the confirmation page to bring with you to your interview at the U.S. Embassy or Consulate. You also will have to pay a non-refundable visa application fee and you may have to pay visa issuance fee, based on your nationality.

You can receive a new student visa up to 120 days before your course or program of study begins, but you cannot enter the U.S. any earlier than 30 days prior to the beginning of the program.

Whatever your situation may be, you will need skilled legal assistance to work toward a resolution of your immigration law matter. The Texas immigration attorneys of Peek & Toland know how to help you navigate through the maze of immigration forms, regulations, and policies, and get the relief that you need. Take the first step today and secure the future of your family in the U.S. Contact our office today at and set up an evaluation with one of our highly skilled Texas immigration lawyers.

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Problems with E-Verify Continue

By Peek & Toland on January 17, 2019

The purpose of the E-Verify Program is to identify and prevent unauthorized workers from gaining employment in the U.S. While E-Verify is current a voluntary program for employers to use, it may become mandatory as part of a larger immigration reform movement.

In order to use this program, employers use an Internet-based application to check with the Department of Homeland Security (DHS) and verify that prospective employees are legally eligible to work. The federal government already utilizes the program, as do some states as part of state government hiring procedures.

 

Problems with E-Verify Continue

One of the most common mistakes with E-Verify is incorrect data. If using E-Verify incorrectly designates a person as ineligible to work, he or she may lose out on employment opportunities. This is the case because if a employee receives notice of ineligibility to work, then he or she only has eight working days within which to contact the federal government and try to sort out the problem. If he or she fails to meet this deadline, then DHS issues a final non-confirmation notice and the employer must fire the employee.

Unfortunately, these errors are not unusual. As recently as federal fiscal year 2012, U.S. Citizenship and Immigration Services (USCIS) reported that about one in every 400 verifications was erroneous and later reversed after an appeal by the worker. Plus, those numbers include only those workers who took steps to contest the notices of ineligibility. It is estimated that about one percent of applicants, or 1.3 million people, did not contest the E-Verify findings.

Furthermore, correcting these errors often takes a great deal of time and money. Individuals must navigate the huge bureaucracies of the Social Security Administration and/or DHS in an attempt to have even simple errors resolved, such as typographical errors.

At Peek & Toland, we care about helping you obtain the visa that you need, based on your situation. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.

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Immigration Application Mistakes to Avoid

By Peek & Toland on January 16, 2019

While it always has been wise to avoid mistakes on your immigration application, if for no other reason than to save time in processing, it has never been more important that it is now, due to some recent policy shifts by U.S. Citizenship and Immigration Services (USCIS). From now on, failing to include a required document or some other information in your application packet could result in an automatic denial of your application, with no recourse but to reapply. Plus, in some situations, this denial notice could immediately trigger deportation proceedings.

This past summer, USCIS announced that it would deny any immigration application that lacks a required document. Under this policy, USCIS will simply issue a denial of any such application without notice to the applicant or giving the applicant a chance to correct the deficiency. This will require individuals to completely resubmit their completed applications and pay the filing fee again in order to have USCIS consider their applications. Previously, USCIS remedied errors in applications by issuing a Request for Evidence (RFE) to obtain any missing documentation or a Notice of Intent to Deny (NOID), which is a notice that sets forth the errors in the application. It was only if there was no possibility that USCIS would approve the application that it would issue a denial notice.

Additionally, if the denial of the application results in immigrants being present in the U.S. with no lawful immigration status, USCIS may immediately place them in deportation proceedings. This is a lengthy and expensive process with serious consequences, including detention and deportation.

Immigration Application Mistakes to Avoid

As a result of these policy changes, it is essential that applicants, regardless of the type of applications they are submitting, take the time to review their applications and ensure that all required documents are included. Some of the more common mistakes seen on immigration applications include:

·         Failing to disclose criminal history

·         Failing to include the application fee, or including the wrong amount

·         Forgetting to sign the application

·         Putting incorrect names on the application

·         Filing the wrong application form

·         Not being completely truthful on the application

All of these mistakes could lead to a summary denial of your application, and in certain situations, could place you in deportation proceedings. Given these consequences, it is worth taking additional time to remedy any mistakes and ensure that you have included all required documents prior to submitting your application.

Peek & Toland dedicates a large part of its practice to helping both individuals and businesses resolve their immigration-related issues. Immigration law is a complex, ever-changing area of the law that necessitates legal advice from experienced immigration lawyers who keep up-to-date with all relevant changes in law and policy. We will work with you to achieve the most positive outcome possible in your situation. Call our office today and set up a consultation with our skilled immigration attorneys today.

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Should I Apply for a Fiance(e) or Spousal Visa?

By Peek & Toland on January 15, 2019

You can acquire citizenship for an individual through marriage either by using a fiancé(e) visa or a spousal visa, depending on which program is right for you. Although both types of visas require a showing of a bona fide relationship, there are pros and cons to both visas. As a result, you should take some time to educate yourself about those options prior to deciding which visa to pursue.

If you are a U.S. citizen, you can use the K-1 visa to bring a fiancé(e) to the U.S. with the intent to marry and live with him or her. The K-1 visa allows the fiancé(e) to travel to the U.S. and marry the U.S. citizen within a 90-day window. This tends to be quicker than obtaining a spousal visa, since it typically only takes about six to seven months to obtain the K-1 visa and then another ten to 11 months for the newly married spouse to become a conditional permanent resident. However, the cost to obtain a K-1 visa is significantly higher than that to obtain a spousal visa.

 

                                       Should I Apply for a Fiance(e) or Spousal Visa?

There are some requirements that you must meet in order to obtain a fiancé(e) visa. Typically, you must have seen your fiancé(e) in person within the last two years prior to seeking a fiancé(e) visa, although this requirement may be waived in cases of extreme hardship or religious practices.  Both of you must be single and eligible for marriage. If either of you have previously been married, you must provide proof of your divorce or a death certificate for your former spouse. The U.S. citizen must have income that is at least 100% of the federal poverty guidelines, and in order to later apply for a green card for the spouse, the U.S. citizen must have income that is at least 125% of the federal poverty guidelines.

If you are a U.S. citizen who already married an immigrant outside of the U.S., and you now wish to bring your spouse to the U.S., you may be able to do so by filing the I-130, Petition for Alien Relative. This process allows you to sponsor your spouse for a green card. It is cheaper to obtain a spousal visa than a fiancé(e) visa, but the process is lengthier. It often takes ten to 13 months or longer to get a spousal visa.

When you or a loved one is facing an immigration law dilemma, you need legal advice and counsel from experienced Texas immigration attorneys. At Peek & Toland, we are here to help you with your immigration case. We will devote all our efforts to representing your interests, answering your questions, and calming your concerns. Don’t hesitate to contact Peek & Toland and schedule a time to meet with us today. We can help protect your rights and get you the relief that you need.

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Changes to Health Examinations for Legal Immigrants

By Peek & Toland on December 23, 2018

U.S. Citizenship and Immigration Services (USCIS) has implemented some changes to the health examination process for legal immigrants. This exam is required as evidence that an immigrant is not inadmissible to the country due to some health-related condition.

First, as of October 1, 2018, USCIS will no longer accept the tuberculin skin test (TST) as part of the required I-693 Form Report of Medical Examination and Vaccination Record. Now, all applicants who are age two and older will be required to undergo a TB blood test or the initial TB screening method. USCIS cautions that this new requirement will result in an increase in the price of the medical exam and a processing time of four to five business days, as opposed two days.

 

Changes to Health Examinations for Legal Immigrants

Next, effective November 1, 2018, a completed Form I-693 will remain valid for a maximum period of two years from the date of the civil surgeon’s signature on the form, as long as the surgeon signs the form 60 days before the date on which the applicant files his or her application for an immigration benefit with USCIS. Prior to this date, Form I-693 only was valid for one year, which resulted in applicants sometimes having to obtain another medical exam due to long wait times for the processing of their applications. In particular, long wait times for adjustment of status applications have caused the expiration of medical exams in many cases. The hope is that the change will eliminate the time and money necessary to obtain an additional exam. Nonetheless, the USCIS examiner still have the discretion to request updated medical information from applicants as needed.

The immigration lawyers of Peek & Toland have the experience and knowledge that are necessary to represent your interests when you are dealing with an immigration law issue. We are here to gather the necessary information on your behalf and develop the best strategy for achieving your goals. Take the first step by contacting us today and learning what we can do to help.

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Proposed Changes to the H-1B Legal Landscape are Coming. Are You Ready?

By Peek & Toland on December 18, 2018

H-1B Cap season is quickly approaching; the visas are capped at 85,000 issued per year (65,000 initially allocated and 20,000 cap exempt advanced degree numbers). The Department of Homeland Security has proposed rule changes that may affect you.

In 2017 the Trump Administration issued the “Buy American Hire American” executive order, which greatly changed the immigration landscape. As a result, employment-based immigration processes have encountered increased scrutiny. For example, one section of the order instructed The Department of Homeland Security to, “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest paid petition beneficiaries.” The recently proposed order strives to do that.

The proposed change comes in two parts:

  • An online registration system would be put into place. H-1B Petitioners would create an online account prior to filing the petitions and only those selected accounts would submit petitions to USCIS.
  • The “cap” process would be reversed. In an attempt to increase the number of advanced applicants, all applicants (including those marked as “Masters Cap Exempt”) would compete for the initial 65,000 H-1B’s. Once all initial numbers are used, then the remaining advanced degree holders would compete for the remaining 20,000 slots.

The first change would require petitioning companies and applicants to provide basic information (i.e. employer name, address, EIN, etc. as well as beneficiary name, country of citizenship, degree held, etc.). It would also require employers to confirm their intent to file an H-1B application for that specific beneficiary. A separate registration would need to be filed for each beneficiary. Government spokespersons have said this would save companies money by ensuring they did not have to pay filing fees until the petition was selected. The secondary change, per USCIS Spokesman Michael Bars, “would help ensure more of the best and brightest workers from around the world come to America under the H-1B program”.

The proposed order is similar to a hotly contested proposed order under the Obama Administration. In 2011 when this similar order was considered the American Immigration Lawyers Association (AILA) responded to The U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services raising their concerns. The general concerns of the association, consisting of over 11,000 immigration attorneys, were:

  • The registration system would create a rush of registrations, creating a false H-1B Demand;
  • The Cost to Benefit assessment was flawed; and
  • This would add an unnecessary layer to an already complicated process.

The government has posted the currently proposed changes on the Federal Register, and is taking comments until January 2, 2019. USCIS has informed the public that they would like to enact this change prior to the FY2020 H-1B Cap season, beginning April 1, 2019.

What does this mean for you as an employer?

While it is unlikely that these changes will be enacted in 2019 due to regulatory requirements, H-1B visas will still be limited to 85,000 and employers will need to be prepared to file as early as possible.

Peek Toland & Castañeda has a strong team of immigration attorneys, including Partner Jeff Peek and Senior Corporate Immigration Attorney, Maria Pilar Llusá. With over seventeen (17) years of Employment Immigration experience, they are prepared to tackle any issues your company may have with regards to their immigration needs.

Looking for legal help for your H-1B applications?

To help employers get a jump start and be prepared for a successful cap season, our firm will be offering free 30 minute consults to companies with new H-1B cap season needs starting January 3, 2019.

It is important you be prepared and informed of the requirements for the H-1B Cap season. Please contact our offices to schedule your consult today. We look forward to working with you and serving all your immigration needs.

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F-1 Visa Students with Pending H-1B Petitions Risk Accruing Unlawful Presence

By Peek & Toland on December 7, 2018

Thousands of recently international student graduates are likely to lose their jobs with the American companies who have hired them due to delays in processing their H-1B visa petitions. Although they can remain in the U.S. while their visa petitions are pending, they no longer are able to work according to new policy guidance by U.S. Citizenship and Immigration Services (USCIS). This can make remaining in the U.S. financially impossible; although these individuals have the option to reenroll in classes to maintain lawful presence in the interim period, that, too, can be a financial burden.

Furthermore, if these individuals are still present in the U.S. after their F-1 student visas expire, but before their H-1B visa petitions are approved, they risk accruing unlawful presence, which can have serious implications for their futures. If they accrue unlawful presence, they could be banned from returning to the U.S. for years at a time.

 

F-1 Visa Students with Pending H-1B Petitions Risk Accruing Unlawful Presence

Initially, the Trump administration granted immigrants with expired student visas or recent graduates who worked under the Optional Practical Training program an extension on their ability to work. Meanwhile, the government eliminated premium processing of these visas, which allowed them to be fast-tracked by paying a fee, claiming that doing so would expedite normally processing. However, this strategy seems to have backfired, since this so-called “cap gap” expired October 1, 2018 and the federal government has failed to process all the cap-gap visas prior to the deadline. This has left American employers with no choice but to temporarily lay off foreign employees that still have H-1B visa petitions pending, for what seems to be an indefinite period of time.

Essentially, USCIS has managed to eliminate or at least severely stifle the existing H-1B visa program, which provided a larger employee pool for American companies and better opportunities for immigrants who have been educated in America. Although American companies had the option of requesting “expedited” processing in time-sensitive cases, this avenue has proved to be completely unreliable, as the federal government failed to process all of the cap-gap visas prior to October 1, 2018, which made them extremely time-sensitive.

The immigration lawyers of Peek & Toland have the experience and knowledge that are necessary to represent your interests when you are dealing with an immigration law issue. We are here to gather the necessary information on your behalf and develop the best strategy for achieving your goals. Take the first step by contacting us today and learning what we can do to help.

Posted in Visas

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