Sham Marriages Do Not Qualify for Visas

bigstock-Passports-31148Only U.S. citizens and lawful permanent residents of the United States are allowed to sponsor foreign citizen spouses for visas. To begin the process of sponsoring the foreign citizen, the lawful resident or U.S. citizen will need to use Form I-130, which is a Petition for Alien Relative. If the foreign citizen spouse already holds a valid American visa and is already in the United States, then the U.S. citizen or lawful resident may file a request to adjust the foreign citizen’s status along with the Petition for Alien Relative.

Qualifying Marriage Relationship

In determining whether or not to issue a visa to a spouse, the United States will verify the status of the petitioner, which is the citizen or permanent resident filing the Form I-130, and establish that the wedding relationship is a qualifying wedding relationship. The validity of a wedding is determined based on the law of the country or jurisdiction where the wedding took place. However, when the wedding that was celebrated in another country offends American public policy, then the marriage may be deemed invalid for immigration purposes.

A Good Faith Requirement

The law also requires that marriages be entered into “in good faith.”  This means that the sole reason for entering into a wedding may not be simply for the purpose of receiving certain immigration benefits. When immigration benefits are the only reason for entering into a marriage, then the wedding is deemed a “sham marriage,” which is another way of saying that it is a fraudulent marriage.

Red Flags

Sometimes, certain facts will trigger red flags for the United States Citizenship & Immigration Services (USCIS), which investigates and approves visa petitions for foreign citizens. While these red flags may not automatically lead to a denial, they will make petition review authorities review the petition with much more scrutiny. Some of those red flags include major differences in age, a communication barrier between the couple, vast cultural and ethnic background differences, when a wedding is arranged, when a wedding is entered into immediately after the foreign citizen was apprehended for reasons which could result in deportation or after a notice of deportation was received, when there are discrepancies in answers to questions which both spouses should be aware of, when the couple has not lived together since the marriage, and when the U.S. citizen or lawful resident has filed petitions on behalf of foreign citizens in the past. Only the federal government is allowed to determine the validity of a marriage for the purposes of immigration.

Penalties for Fraudulent Marriages

In addition to being denied immigration benefits, those who enter into sham marriages also face the risk of several years in prison, fines totaling hundreds of thousands of dollars, or both. The foreign citizen spouse faces deportation and the inability to obtain any immigration benefits from the United States in the future. Additional jail time and imprisonment may be faced if any false documentation is provided with an application or if the petitioner conceals a material fact regarding the marriage.

Generally, a lawful permanent resident must wait five years from the date that he or she became a lawful permanent resident to sponsor a foreign citizen spouse, if the lawful permanent resident status was obtained by wedding to a U.S. citizen or other lawful permanent resident. An exemption to this waiting period can be granted if the petitioner can prove that the original marriage was a good faith marriage, or that the original marriage ended with the death of the other spouse.

The Deportation – Removal Process

bigstock-Immigration-Rally-in-Washingto-7293710Reasons for Removal

Anyone who is considered an immigrant may be removed (which is the official term for a deportation) by the United States if they are in violation of immigration laws. Some reasons for removal may include the following:

  • Violation of the Immigration and Nationality Act
  • Violation of any serious law (like a gross misdemeanor or felony) in the United States
  • Violation of conditions to enter the United States
  • Committing marriage fraud
  • Providing false documents
  • Failing to provide requested documents
  • Unlawful voting

Keep in mind this is only a short list of reasons for removal from the United States. Each of these reasons and many other reasons that are not listed are covered in great detail in the law. Not educating yourself on immigration and deportation laws could cost you much more than you might think. Even people who have remained lawful permanent residents of the United States since they were children may be deported if they commit a removable offense.

Process of Deportation

If you find yourself in the middle of a deportation process you need to know that you are entitled to certain rights. You will go through a legal proceeding and you have the right to challenge the deportation and will have the opportunity to explain and defend your position.

If your presence in the United States is questioned by the government you will receive a Notice to Appear by mail. This document will have general information about the immigrant in question, such as name, address, and country of birth, as well as the reasons the court is seeking deportation.

A hearing will also be scheduled that you must attend. If you do not have an attorney at this initial hearing you will usually be given the opportunity to hire legal counsel and the hearing will be scheduled for a later date.

After you have hired an attorney, you will be questioned, under oath, by the judge regarding the reasons for deportation outlined in the original notice to appear. During this time the judge will allow you to apply for relief from deportation by filing the appropriate forms, if you are eligible. If you are not eligible under any forms of relief, the judge will order deportation. If you are eligible to apply for relief, another hearing will be scheduled.

During the individual hearing you will have the opportunity to testify on your own behalf as well as the chance to have witnesses testify in your defense. After testimony is heard by the judge, the judge can make a ruling during the hearing or you will be notified at a later date on the judge’s decision after further investigation of the matter at hand. Even if the judge decides that you should be deported, all hope is not lost. You then have the right to file an appeal with the Board of Immigration Appeals, and, if necessary, the United States Court of Appeals.  The case can even be appealed all the way to the United States Supreme Court, but it is the Supreme Court’s prerogative whether or not it will hear the case.

Legal Help

In order to make sure that you understand the deportation process, you will need to contact an attorney that specializes in immigration law to help protect and understand your legal rights when dealing with matters of immigration.

Visas Just for Foreign Investors

bigstock-Passport-Gavel-5802855One option which is available to foreign citizens who want the right to live and work in the United States is a special type of visa intended solely for investors who invest a substantial amount of capital into the U.S.

Along with being a nation of immigrants, the United States is also a nation of entrepreneurs. By encouraging foreign investors to invest a substantial amount of capital into the U.S. economy, the U.S. not only gets a quick infusion of cash, but new or expanded jobs that can help get American citizens back to work.

Basic Requirements

Unlike other types of visas, the foreign investor visa does not require the foreign investor to be sponsored by a U.S. citizen or lawful permanent resident. The investment of capital into the U.S. economy will qualify the foreign investor for this type of visa, not the investor’s relationship to a citizen or lawful resident. As for the amount of capital that must be invested in order for an investor to qualify under the program, the amount has to be at least $1,000,000 – but this amount requirement is lowered to $500,000 if the investment is made into a government designated industry. The government designates industries which would qualify for the reduced investment amount as a way to encourage investment in American sectors that could use it the most.

Another requirement of the program, which is what provides the United States with the most benefit, is that the capital invested into the U.S. economy must be invested into a legitimate business venture and create at least 10 new jobs. If the investment is made into a company or business that already exists, then the job creation requirement is changed slightly, and the investment must instead expand the business’ current employee work force or net worth by 40%.

Why an Investment Has to Work

While no investment is without risk, foreign investors who are granted a U.S. investor’s visa are only granted the visa for an initial period of two years and risk losing the visa if an investment fails. If the investment is unable to create the number of jobs or expand the business by the percentage rate required under the program’s requirements, then the government can revoke the investor’s visa. While extensions to visa deadlines can be granted on a case by case basis, they can’t be issued indefinitely. If the investor wants to maintain his or her investor visa, then the investment made which qualified the person for the visa in the first place will have to be a success under the conditions of the program.

Whether they are thinking of applying for an investor’s visa, in the process of finding a suitable venture into which to invest, or approaching a deadline before all conditions under the investor visa program have been met, individuals with questions about the investor visa program should not hesitate to contact an experienced E1 & E2 investor visa attorney. An attorney can review all of the relevant facts of a foreign investor’s case and help the investor deal with any legal issues relating to the investor visa that may come up.

What Work Visa Do I Qualify For?

bigstock-Business-people-shaking-hands--13871435-1A work visa is a temporary privilege that grants foreign nationals, a person who is a citizen of any country other than the United States, to be employed inside the United States. There are several types of work visas available, and there are many factors to determine whether or not you qualify. The United States has a variety of endorse categories and strict conditions that foreign workers must meet in order to be granted a legal work status.

Types of Work Visas

  • H-1B Visa – If you are a professional, and you are sponsored by an employer in the United States, you may qualify for this type of visa. An H-1B type of visa can be valid for a period of six years. Initially this ratification is valid for three years and with a request for extension can be valid for an additional three years.
  • L-1A Visa – If you have worked at least one year within the last three years with a company as a manager or at the executive level you may qualify for this type of ratification if your company wishes to transfer you to one of it’s locations inside the United States. This type of ratification is initially granted for a period of three years and can be extended for a maximum of seven years.
  • L-1B Visa – In order to qualify for this type of ratification you must have specialized knowledge and or experience that the employer cannot reasonably replace. This type of Visa is granted for three years and can be extended for up to a five year maximum.
  • E1 and E2 Visa – If you are from a country that has a treaty with the United States government you may qualify for this type of visa. Some conditions for qualification are that you conduct substantial trade between your country and the United States, or that you direct and develop the operations for United States based enterprises that you have invested a substantial amount of capital in.
  • TN Visa – If you are a professional Mexican or Canadian national employed in the United States and meet qualifications under the North Atlantic Free Trade Agreement you may qualify for this type of Visa. This type of Visa is usually valid for one year and can be extended by the United States Citizenship and Immigration Service one year at a time with no limitations on the number of extensions you request.

Seeking Help

These are only a few types of work visas that you can apply for to gain the right to legally work in the United States. Each type of ratification requires strict guidelines that must be followed, with few exceptions granted. Every type of visa is limited in the time that it may be granted for and it is up to the person issued the ratification to provide all necessary documents and file for extensions when necessary to avoid having the visa expire. The only way to be absolutely sure that you are applying for the best type of work ratification for your circumstances is to seek the advice of a L-1A visa attorney. You will need to choose a L-1A visa lawyer that you are comfortable with, who is competent, and who possesses experience with United States immigration laws and policies.

President Obama Speaks out against Arizona’s Immigration Law and in Favor of Comprehensive Immigration Reform

bigstock-American-Flag-504715On May 5, 2010, President Obama held a Cinco de Mayo Reception to celebrate Latino culture in America. He used the opportunity to voice his concerns regarding Arizona’s recently enacted immigration law and, more generally, to discuss comprehensive immigration reform. In his remarks, the President signaled the need for comprehensive migration reform and his desire to begin work on such reforms this year. According to our immigration lawyers, he also made his disapproval of Arizona immigration law clear, stating “the answer isn’t to undermine fundamental principles that define us as a nation. We can’t start singling out people because of who they look like, or how they talk, or how they dress. We can’t turn law-abiding American citizens — and law-abiding immigrants — into subjects of suspicion and abuse.” The President is undoubtedly sensitive to the racial profiling and discrimination that will inevitably stem from the enforcement of Arizona’s new law.

Though it may comfort some to know the Administration will be closely monitoring Arizona’s law, and evaluating the civil rights and other implications it may have, the only solution in the end will be comprehensive migration reform. Comprehensive migration reform, as noted by President Obama, will be difficult, especially because it will require bipartisan support which has not been easy to come by as of late. Regardless, it is the only solution that will “close the door on [the] kind of misconceived action” that we recently witnessed in Arizona.

In his speech, President Obama called for “common-sense, comprehensive migration reform.” He did not provide many details regarding his vision for comprehensive immigration reform, but what he did say was enlightening nonetheless. The President predictably spoke out in favor of securing our borders and holding businesses accountable for “undermining American workers and exploiting undocumented workers.” The most interesting comment, though, was what the President said regarding illegal immigration. Specifically, the President stated that people who are living illegally in the U.S. should “admit that they broke the law, and pay taxes, and pay a penalty, and learn English, and get right before the law — and then get in line and earn their citizenship.”

In one very carefully crafted yet informative sentence, the President laid out his proposal for how to handle the current population of people living in the United States illegally. Though he never used the word amnesty, the President appears to be endorsing a program that would ultimately allow undocumented foreign nationals to earn U.S. citizenship. The problem of illegal migration is one of the greatest challenges facing comprehensive immigration reform and it is encouraging to know the President has a realistic and constructive solution to the problem. Before comprehensive migration reform can be debated in Congress, however, a proposal must first be put forth. No bill has been introduced, but the Senate Democrats have developed a conceptual proposal for migration reform. The introduction of the Senate Democrats’ immigration reform plan is the first measure in what will surely become the next hotly debated issue of the Obama Administration and, needless to say, the world and our immigration attorneys will be watching closely as the debate unfolds.

Options For Laid Off H-1B Visa Holders

bigstock-Immigration-Rally-in-Washingto-7293710As of May 2010, the unemployment rate in the United States is close to 10%, representing at least 15.3 million people out of work. Cities such as Troy, Michigan and Columbus, Ohio continue to struggle. Indeed the economy is improving but unemployment rate is expected to hold steady and with tougher H-1B review by USCIS and higher rates of H-1B denials, it is expected that more H-1B holders will lose their jobs in the next few months. While U.S. Citizens and permanent residents can collect unemployment benefits as they search for a new job, H-1B visa holders do not have that option. In fact, for H-1B visa holders, losing their job means losing their status.

There is a fair amount of confusion concerning whether there is a “grace period” after an H-1B visa holder’s employment is terminated. Rumors abound that the 60 day grace period applicable to F-1 student status applies to H-1B status. Moreover, many interpret CFR 214.2(h)(13)(i)(A) as providing for a grace period after the validity period of the H-1B ends. Technically speaking, an H-1B visa holder is out of status once their H-1B has been revoked or expires. The 10 day period provided for in CFR 214.2(h)(13)(i)(A), however, is intended to provide the foreign national time to wrap up their affairs and leave the United States. It is not, unfortunately, meant to provide the foreign national time to find and port to a new H-1B position. What, then, are the options for H-1B visa holders who have been laid off?

Despite the lack of a formal grace period, one option may be for an H-1B visa holder to port to another H-1B employer. Depending upon the amount of notice the employer has provided, the H-1B visa holder may be able to secure a new H-1B position before their termination is effective. For example, if the H-1B employer gave the H-1B visa holder two months notice before their termination became effective, the H-1B visa holder may be able to find and port to a new H-1B position before their H-1B is revoked. Under the American Competitiveness in the Twenty First Century Act, the H-1B employee can begin working with their new H-1B employer as soon as the new employer files a portability petition with the United States Customs and Immigration Services (USCIS). Thus, it may be possible for the foreign national to port to the new H-1B position before their original employer revokes their H-1B status.

If the H-1B employer has not provided sufficient notice or porting is not an immediate possibility, another option is for the foreign national to change status. A change of status, though, is highly dependent upon each individual H-1B visa holder’s situation. For instance, an H-1B visa holder may be able to change their status to F-1 student status. This may be difficult, though, considering the H-1B visa holder must be accepted and begin classes within a short period of time. Another option may be a temporary change of status to a B1/B2 visa or to a dependent status such as H-4 or L-2, again depending upon the foreign national’s specific circumstances. Additionally, if an H-1B visa holder has commenced the permanent resident process, they may be eligible to work in a substantially similar position on an EAD card.

An H-1B visa holder that is being laid off should immediately consult with an experienced immigration attorney about their individual situation. The H-1B employee should thoroughly understand their options for remaining and working in the United States after the lay off. And it is important to remember that time is of the essence, because for an H-1B visa holder losing their job means losing their status.

Work Visa Options For Canadian Professionals: L Visas

bigstock-Immigration-3151682For Canadian professionals who qualify, the L visa combines the faster processing of the TN visa with the path to permanent residency provided by the H-1B. As with the TN visa, a Canadian professional can apply for an L visa at a U.S. port of entry. This makes the application process faster than applying for other nonimmigrant employment classifications, such as the H-1B, that must be processed through a USCIS Service Center. Moreover, Canadian professionals working in a managerial or executive capacity do not usually need a labor certification to begin the green card process, which can also significantly expedite the permanent resident process. These benefits make the L visa an attractive option for Canadian professionals, especially those seeking permanent residence in the United States.

The L visa is available for intracompany transferees in either specialized knowledge positions or executive or managerial positions, according to our L-1A visa lawyers. The intracompany transferee must have worked abroad with a parent, affiliate, subsidiary, or branch of the U.S. employer for one continuous year out of the preceding three years. Interestingly, time spent by the Canadian professional in the United States in lawful status for business or pleasure will not interrupt the continuity of employment abroad; however, such periods will not be counted towards the accrual of one year employment abroad. To qualify as a specialized knowledge individual, the Canadian professional must have special knowledge or expertise regarding their employer’s product, service, research, equipment, techniques, management, processes or procedures. A specialized knowledge employee is eligible to hold L status for a maximum of 5 years.

A Canadian intracompany transferee may also work in a managerial or executive capacity. Though it may seem obvious, the primary criteria for a managerial position is that the employee manage the company or a part of the company. The employee’s duties should involve supervising the work of other professional or managerial employees and/or managing an essential function or operation within the company. It is important to note that a first line supervisor does not typically qualify as a manager for L purposes.

A Canadian professional that is seeking L status as an executive must establish their proposed U.S. position is one of executive capacity. An executive is an employee who directs the management of the company or a subsection of the company. This differs from a manager in that an executive sets the overarching goals and policies of the company or a subsection, whereas a manager oversees the day-to-day operations of the company. An employee in an executive capacity should have wide spread discretion in decision-making and receive very little supervision. A Canadian professional in a managerial or executive capacity is eligible for L status for a maximum of 7 years. Any time a Canadian professional has previously spent in H-1B status, without leaving the U.S. for a minimum of one year, will be counted against the time the Canadian professional is eligible for L status.

For Canadian professionals considering an L visa, it is advisable to speak with a knowledgeable L-1A visa attorney. Qualified immigration counsel can help any Canadian professional answer difficult questions, such as whether they are a specialized knowledge or executive/managerial employee, whether their employer abroad has the requisite relationship with the U.S. employer and whether they have accrued enough time working abroad. The L classification is a great work visa option for those Canadian professionals who qualify, but the eligibility criteria can be complex and a Canadian professional should always be sure they meet the qualifications before applying.

TN Visa Options For Canadian Professionals

bigstock-Citizenship-documents-43205116Ironically, Canadian professionals have many work “visa” options, even though Canadians for the most part are visa-exempt due to the special relationship between Canada and the U.S. Despite not needing an actual visa in many instances to enter the United States, Canadian professionals must still qualify for an employment classification to work in the U.S. One of the most popular employment classifications for Canadian professionals is the TN visa. The TN is especially attractive because there is no limit to the number issued each year, the processing times are significantly faster when applying at a port of entry, and it can be renewed indefinitely. However, Canadian professionals should understand and appreciate the benefits, as well as the limitations, of TN status before determining if it is an appropriate classification for their situation. One important characteristic of TN status is that it does not allow for dual intent. Thus, a Canadian professional seeking U.S. permanent residence would want to seriously consider the fact that TN status does not lead to a green card.

The TN classification is an immigration benefit provided by the North American Free Trade Agreement (NAFTA), a treaty between the United States, Canada and Mexico. In addition to being a Canadian or Mexican citizen, to qualify for TN status one must work in a NAFTA-approved profession and possess the requisite qualifications. There are over 60 professions designated as TN eligible under NAFTA, such as Computer Systems Analyst, Engineer, Research Assistant, Pharmacist, Psychologist, Veterinarian, Plant Breeder, and University Professor just to name a few. The education/experience requirements for each NAFTA profession are also outlined in the agreement. For example, to work as a Computer Systems Analyst one must have a Baccalaureate or Licenciatura Degree, or a Post-Secondary Diploma/Certificate and three years of experience.

The initial TN application has to be completed at a port of entry with the Canadian professional in attendance. As previously mentioned, it is incumbent upon the applicant to not only prove they will be working in a NAFTA profession, but also establish that they possess the requisite education/experience for the profession. The applicant should bring a letter from their prospective employer describing the NAFTA-approved profession in which they will be employed. Moreover, the TN applicant should bring original employment letters, diplomas and transcripts as evidence of their education and experience. Although it may seem obvious, a TN applicant should also have proof of their Canadian (or Mexican) citizenship.

After the initial TN application at a port of entry, TN holders are generally permitted to renew their status through a United States Citizenship and Immigration Services (USCIS) Service Center. However, the filing fees and processing times for an application through the Service Center are both higher than through the port of entry. While TN status has many advantages for Canadian professionals, it may not always be the appropriate visa category, especially for foreign nationals seeking permanent residence in the United States. It is important for Canadian professionals to review and understand all of their visa options to ensure their immigration goals are being met. Canadian professionals who have questions regarding which visa is most appropriate for their circumstances should consult with an experienced immigration attorney.

What to Expect in a Fiancé or Marriage Visa Interview at the Embassy

bigstock-Passports-31148For Fiancé and Marriage visa applicants, the interview at the Embassy can be the most stressful part of the process. The interview is also, arguably, the most important part of the process and, thus, it is important for applicants to be prepared. Though one might expect the application process to be somewhat standardized, each U.S. Embassy has different policies and procedures governing how validation applications are processed. Therefore, it is imperative for the visa applicant to research the Embassy they will be visiting in order to adequately prepare for the interview. It is highly advisable for any validation applicant to review the website of the Embassy they will be visiting for information on the specific policies and procedures of that Embassy. A Fiancé or Marriage validation applicant’s interview will be scheduled at the Embassy with jurisdiction over their residence abroad.

Visa interviews are conducted by appointment only and it is vital that the applicant be on time for the interview. There is usually some form of security screening at the Embassy and applicants should allow time for security when planning their visit. Generally, after entering the Embassy, the applicant will check-in with a Consular Official and may be required to provide their validation application(s)/documentation for review. Upon checking-in, the visa applicant will usually be told to remain in the waiting area until their name/number is called. At some point, the validation applicant will be asked to complete a digital fingerprint scan. The applicant’s documents , if previously collected, will be returned prior to meeting with the Consular Officer.

Once the applicant’s name/number has been called, they will proceed to their interview with the Consular Officer. The Consular Officer’s primary purpose is to determine the validity of the relationship underlying the Fiancé or Marriage validation application. Therefore, the Consular Officer will review the documentation provided by the applicant and ask questions pertaining to the applicant’s relationship with their U.S. Fiancé or spouse. Depending upon the Embassy and the type of validation application, the U.S. fiancé/spouse’s presence may or may not be requested at the interview. The questions asked during a Fiancé or Marriage visa interview are are selected at the discretion of the Consular Officer and usually not the same during each interview. Most of the questions, though, will be geared towards ascertaining the validity of the foreign national and U.S. Citizen/permanent resident’s relationship. A few examples of the types of questions an interviewee may be asked include:

  • What is your fiancé/spouse’s favorite hobby?
  • Where are (or did) you get married?
  • When and where did you meet your fiancé/spouse?
  • Do you and your fiancé/spouse currently live together?
  • What time does your fiancé/spouse get up each morning and what time does he/she return home each night?

The amount of time an interview will last can vary greatly. As most Embassies conduct hundreds of visa application interviews each day, the length of the interview may be just a few minutes. However, some interviews will last longer than others for a variety of reasons. Once the actual interview has concluded, the visa applicant will be notified if they are eligible for a visa. If the applicant has qualified for a visa, they will leave their passport at the Embassy in order for the visa to be affixed. The passport is then returned to the applicant via courier or mail.

The Fiancé or Marriage visa interview at the U.S. Embassy can be intimidating, especially for foreign nationals who do not know what to expect. The fact that each Embassy has unique processes and procedures for processing visa applications does not help matters. However, a Fiancé or Marriage visa applicant can research the Embassy which they will be visiting and commonly obtain a plethora of Embassy-specific information just by visiting the Embassy’s website. Knowing the particular policies, procedures and documents required by the Embassy designated for the interview can go a long way towards calming one’s nerves prior to a Fiancé or Marriage visa interview

10 Reasons Why The Neufeld H-1B Memorandum Should Be Withdrawn

bigstock-Passports-31148

      1. The memorandum is in violation of the Administrative Procedures Act (APA), which governs rule-making by government agencies and sets forth minimum procedures which must be followed by government agencies issuing new rules. The United States Citizenship and Immigration Services (USCIS) did not follow the procedures required by the APA when it unilaterally changed the requirements for an H-1B employer-employee relationship.
      2. Though the intended target of the H-1B memorandum was clearly IT Consultants, its consequences extend far beyond the IT Consulting profession. For example, doctors in many circumstances would no longer meet the H-1B employer-employee requirements because many are employed by entities other than the hospitals in which they perform their day-to-day services.
      3. The policies set forth in the memorandum will negatively impact H-1B employers and employees alike. The memorandum imposes evidentiary obligations that an H-1B employer may not necessarily be able to fulfill at the time of the petition, such as letters from the end clients in the context of IT Consultants. These requirements are extremely cumbersome and make it very difficult for H-1B employers to petition for legitimately needed H-1B employees.
      4. The adjudication policies outlined in the memorandum will undoubtedly spread to other nonimmigrant visas and further the effects of this illegal rule-making. If the Neufeld Memorandum is not withdrawn, not only will such policies have an adverse effect on adjudications in the H-1B visa category, but will embolden the USCIS to continue illegal rule-making in other visa categories.
      5. The Neufeld Memorandum introduces new factors to be considered when evaluating an H-1B employer-employee relationship. The current regulations define an H-1B employer as one which is “indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The memorandum’s employer-employee relationship requirements far exceed the scope of the current regulation.
      6. The Neufeld Memorandum creates more confusion than clarity surrounding the requirements for an H-1B employer-employee relationship, especially because the memorandum contains internal inconsistencies regarding the requirements of employee control. The memorandum is riddled with contradictions regarding whether the legal standard is “actual control” or the “right to control” the H-1B employee.
      7. The memorandum creates a greater paperwork burden for both employers and the USCIS. The last thing struggling employers need in this economy is a greater amount of paperwork. With business resources stretched to the breaking point already, the additional evidentiary requirements outlined in the Neufeld Memorandum could be detrimental to many U.S. businesses.
      8. Many H-1B employees attempting to renew their visas will be unfairly denied because the Neufeld Memorandum employer-employee relationship requirements have changed since the beneficiary’s last visa issuance/renewal. Though their “previously approved” employer-employee relationship will not have changed, their H-1B renewal could be denied because the USCIS has single-handedly changed the employer-employee relationship criteria.
      9. Given the implementation of the Neufeld Memorandum’s new employer-employee relationship criteria, some H-1B workers may be in danger of having their visas revoked through no fault of their own. It would be within the discretion of the USCIS to revoke any H-1B visas they feel do not meet the requirements set forth in the Neufeld Memorandum, though no circumstances would have changed since the visa approval.
      10. The USCIS has claimed the memorandum was issued to provide consistency in adjudication procedures across the Service Centers, but in reality the memorandum’s contents are open to a myriad of interpretations. Thus, the memorandum is likely to have the opposite effect and result in varied decisions that are highly inconsistent across the Service Centers.

I know I am supposed to list only the top 10 reasons. But I could not resist adding one more:

    1. USCIS has a history of committing clear violations of the law and backing out when they find themselves in hot water. The most recent incident is when USCIS had to extend to Aug 17, 2007 accepting adjustment of status filings under the July 2007 Visa Bulletin, when they illegally tried to stop accepting cases by claiming every available visa number in order to stop petitioners form legally filing their adjustment of status petitions.