Yardum-Hunter named 2012 Super Lawyer

For the ninth year in a row, Alice Yardum-Hunter has been named a "Super Lawyer" by Los Angeles Magazine and Law & Politics. Additionally, she was named to participate on their Blue Ribbon Panel of lawyers who vet other nominees. The "Super Lawyer" designation is awarded to the top 5% of nominees within a variety of legal specializations based on the vote of attorney peers based on knowledge of the quality of the nominee's work, not just on reputation alone.Thereafter, a vetting of credentials including disciplinary and malpractice checks are made. Ms. Yardum-Hunter is thrilled that she has been named a "Super Lawyer" every year since inception.

F-1 Students at non-SEVP Certified Schools

SEVP has been recertifying schools, some of which have automatically withdrawn from SEVIS certification.

If this happens, CIS writes:

"Don't panic!
Contact your desigtnated school official about your options.
Finish the current semester/term at your current school.
If your designated school official lets you know that your school is being reinstated to enroll nonimmigrant students, you may continue to be enrolled at your school.
If the school remains withdrawn from certification, you will be notified by letter from SEVP. You may do one of the following within 30 days of the school's widrawal

Diversity Lottery Starts Today

The Diversity Lottery starts today at 12 noon Eastern Standard Time and ends on November 5, 2011 at 12 noon Eastern Standard Time for the fiscal year 2013. Applications remain online. 

All natives from around the globe qualify except natives of the following countries do not: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Applicants must have at least equivalent to a U.S. high school education or two years of work experience in a position that normally requires at least two years experience to competently perform.

Further information on the immigrant diversity lottery can be found here: http://www.dvlottery.state.gov/

Alice Yardum-Hunter Speaks on Mergers and Acquisitions and Immigration Law

For Provisors, Ms. Yardum-Hunter spoke on mergers and acquisitions in immigration law for the M&A group of Provisors. 

The handout provided a listing of questions to ask whenever a foreign born employer, or overseas traded stock, or foreign employees are involved in a new or existing commercial venture.

Those questions are repeated below and in the Speeches section under the Publications tab on our website.

Immigration issues in the mergers and acquisitions context arise when a purchasing company is owned in whole or part by alien owners or foreign corporations, or when the entity purchased/acquired or opened has alien workers. 

Questions to ask during a purchase/sale involving alien owned companies seeking to purchase and acquire immigration status through such entity:

1. What sort of entity formation is envisioned for the future (corporation, LLC, limited partnership)?
2. Who owns the new or purchased entity?
3. How many shares and what percentage of ownership? 
4. Is the purchasing or new company a subsidiary of another entity? Who owns the parent?
5. Are there other foreign entities involving the same owners or some of the same owners, and what is the relationship between those and the one making the purchase?
6. What sort of entity formation is envisioned for the future (corporation, LLC, limited partnership)?
7. Do the purchasing owners expect to acquire temporary, permanent or both immigration statuses, sequentially, as a result of the purchase?
8. What is the employment history of the purchasing aliens?
9. What is the expectation of continuation of foreign entities after the U.S. entity is owned?
10. What is the nationality of the owners or if publicly traded, the nationality of the stock market on which the stock is traded?
11. What is the anticipated length of the investment?
12. If there are foreign entities, how many employees are there abroad and at the company already?
13. What is the relationship between the type of business abroad and in the U.S.?
14. What is the preferred type of transaction? (assets and liabilities?)

Regardless of whether the purchasing company is alien owned, here are some questions to ask if there are alien workers at the company to be acquired:

1. How many total employees are there at the acquired/new company?
2. What status do the foreign workers have?
3. How many are there?
4. When do their statuses expire?
5. When were they hired?
6. Does the new owner expect to keep them on board?
7. How long is their expected employment?
8. Do they have dependents?
9. How are they paid (payroll or contractors)?
10. What roles do they serve/how critical are such persons?

To determine whether there are immigration compliance issues, ask:

1. What are the I-9 policies of the company?
2. Do they maintain I-9s?
3. Do they self-audit their I-9s?
4. Have they ever had an I-9 inspection?
5. Have they ever had an ICE site visit?
6. Has the company to be purchased/acquired ever sponsored any foreign workers in the past? Outcomes?
7. Are there pending immigration applications for foreign workers in the pipeline? What is the status of those applications and what are the case histories of them?
8. Does the company have any disgruntled U.S. workers?
9. Has the company ever received any Social Security No-Match letters?
10. Is the employer a federal contractor?
11. Does it participate in E-Verify?

Immigration counsel should not be the last to be involved in the decision of how a foreign owner acquires an entity in the U.S., whether there are alien workers on board or not. When a U.S. owned entity acquires such in the U.S., it must determine whether there are alien workers and structure the transaction so as to keep workers expected to stay on board in lawful status. Incorrect ownership structure can put alien workers out of status and employers at risk of employing workers not authorized for employment in the U.S. 

Prosecutorial Discretion

Prosecutorial Discretion May Signal Departure from Enforcement toward Legalization or Limbo

In a move timed to relieve swelling deportation courts and cut government spending, the Dept. of Homeland Security, through "Prosecutorial Discretion," announced on August 18, 2011 that it will review some 300,000 removal cases and terminate those who are least threatening to the U.S. including non-criminals who have been in the country since youth, those who have strong ties to the community, who are veterans or relatives of such persons, caregivers, those with serious health issues, victims of crime or otherwise have a strong reasons for continuing to remain unlawfully in the United States. 

Given the reality that prioritization of scarcer resources is necessary, and the failure of the U.S. Congress to address the undocumented population in the U.S. in a way which would benefit the U.S. as well as those who cannot otherwise be brought into the system, we welcome this review which will instead focus further on criminal aliens. While enforcement focus by ICE has been said to be on criminal aliens in recent past, now this will be more likely. 

Two specific groups most likely to benefit from this measure are DREAM ACT kids who, but for undocumented status for which they are not responsible feel and act American, and some 36,000 same sex homosexual couples where one partner from overseas has not otherwise been able to regularize their status. 

While significant in numbers, the review and termination of deportation of even all these folks which will not happen as at least some are criminal aliens, still this is a small percentage relative to the millions of undocumented aliens in the U.S. who are not criminals and not in removal proceedings. The presence of these individuals must be addressed. If not by enforcement, then there must be some other mechanism to address them. 

The significance of focus now not so much on immigration enforcement changes the immigration landscape and tips toward legalization or a new lack of direction in immigration policy relative to undocumented aliens. Approximately a half million such aliens have been removed from the U.S. annually over the past couple of years. At this rate, over about 20 years, assuming unlawful entries were to stop, it would take about 20 years to drastically reduce the number of undocumented aliens in the U.S. That DHS will now not continue that policy leads us back toward the other side of ameliorative legislation favoring undocumented aliens, or of the presence of larger numbers of shadow aliens who might be encouraged to enter the U.S. illegally or if in the deportation system, may have their cases terminated but their status still in limbo, unable to move freely.

While a small step, the execution of prosecutorial discretion relative to 300,000 could affect more than 10 million. Only though may the future reveal whether the tides are really turning away from enforcement and toward amnesty or other legalization or legislation having similar effect.

Co-Habiting Partners of Nonimmigrants Qualify for B-2 Status For the First Time Ever

In a groundbreaking Policy Memorandum which permits household member partners who are not married but normally dwell together, elderly parents or over 21 year old children, to qualify for visitor status when their principal alien holds non-immigrant status, such as F-1, H-1, O-1, or L-1, etc. Never before in the history of the USCIS have such relationships been recognized so as to provide lawful status as part of immigration benefits. The relationships benefited do not fall within derivative status under the Immigration and Nationality Act such as for spouses or minor children of professional workers. This action is based on "Prosecutorial Discretion". 

The requirements for eligibility for B-2 status don't change. Nonimmigrant intent of the applicant is still required, but the lawful extension of the principal beneficiary, even for years, does not negatively impact the nonimmigrant intent of the B-2 applicant. The finite purpose of the principal's stay (such as temporary employment) matters rather than the number or length of extensions. In fact, the co-habiting partner’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification. But if the principal applicant not in B-2 status lacks nonimmigrant intent, this will be viewed as a negative factor on the household member's B-2 application. This would happen if, for example, the O-1 partner applied for permanent residence ("green card" status). An application for a green card is viewed as evidence of permanent ("immigrant") intent.

For the first time, live in boyfriends and girlfriends of students, professionals, accomplished artists, or the elderly parents of such persons, or their adult children may be with their loved one in the U.S. This is welcome news for the keeping together of persons who wish to be together or need to be together but don't traditionally fall within those relationships recognized by the Immigration and Nationality Act.

Bravo Attorney General Eric Holder!

Yardum-Hunter, Chair LA County Bar Immigration Section

For the next year, Alice Yardum-Hunter will be chair of the LA County Bar Immigration Section. This section of the Bar provides continuing legal education to it's more than 500 attorney members, provides outreach to the immigrant community and is the face of the bar association on immigration issues. She previously served in all other executive positions of the section and is honored to serve. She hopes to accomplish much this year by holding more CLEs than in the past, as well as bringing new members to the organization. If you are an attorney or law student and wish to join the LA County Bar Assn. Immigration Section, start here: http://www.lacba.org/showpage.cfm?pageid=544. You can feel free to contact Ms. Yardum-Hunter directly for more information as well at 818 609 1953 or alice@yardum-hunter.com.

I-9 Central?

I-9 Central is the USCIS's latest online resource for employers and employees completing the I-9 process. Ultimately, it will better track authorized (and unauthorized) workers in the U.S. It includes sections about employer and employee rights and
responsibilities, step-by-step instructions for completing the form, and information
on acceptable documents for establishing identity and employment authorization. I-9
Central also includes a discussion of common mistakes to avoid when completing
the form, guidance on how to correct errors, and answers to employers’ recent
questions about the Form I-9 process. 

This enhancement comes a month after the resumption of Social Security No-Match letters which serve to detect and resolve discrepancies between employment and Social Security Administration records and a tool for enforcement of laws prohibiting the employment of undocumented workers. We can expect the continuation of greater enforcement against employers and workers as a result of these efforts. 

Go to the link below for information on I-9 Central and in the publications tab for Information on Social Security No-Match Framework.

Click to go to the page with information on I-9

China Diplomatic Visas Harder to Get?

Reports in yesterday's Financial Times were denied today by the State Department regarding harsher standards for Chinese diplomatic visa issuance. The alleged tougher standards coincide with U.S. increased comments regarding human rights violations in China, which are claimed to be the worst in a decade. In response to these allegations, China snubbed the U.S. in scheduled bi-lateral meetings. So, it's in response to such snubbing that the visa issuance issue is raised. 

Whether diplomatic visa issuance is more difficult today than yesterday is simply perceived rather than real, and as a result of the diplomatic tit for tat remains to be seen. 

This all might be as much to do with the world economy as anything.

India and China 2d Preference Expected to Jump Ahead

Each year worldwide, 140,000 visas are available to all employment based visa applicants. No country may send to the U.S. more than 7% of this total, except when there are unused visa numbers, the extra visa numbers are utilized without regard to the 7% limit per country. Based on reasonable expectation of usage in certain of the categories, the anticipated extra numbers are made available during the rest of a fiscal year. As a result of low demand this year in the EB-1 category for extraordinary ability aliens, outstanding researchers and professors and multi-national executives and managers, the EB-2 category will get those extra numbers. As a result, more visas will be available to those most backlogged: master degreed an exceptional aliens from China and India. This phenomenon should play out over the next six months until the end of this fiscal year. It is currently too early to know whether it will recur next year.

H-1B Cap Count

H-1B visa availability is plentiful with only 5,900 H-1B cap-subject petitions receipted so far this fiscal year starting April 1. This is a little less than the 6,700 received last year at the same time. Additionally, USCIS has receipted 4,500 H-1B petitions for aliens with advanced degrees. Last year at this time 2,500 were received. This means that at this time, master degree H-1Bs are being used much more than bachelor degreed H-1s. This could reflect a change in the U.S. economy with business investing in the most talented of H-1s. Each year 65,000 H-1Bs are issued annually to bachelor degreed aliens or those with equivalents to bachelor degrees. An additional 20,000 are allocated annually to master degreed aliens.

H-1B Fiscal 2012 Filing Starts Today

Each year, April 1, employers of first time H-1B specialty occupation aliens may file for aliens in positions requiring a minimum of a bachelor's degree. The position itself must be one which requires theoretical and practical knowledge in a field of endeavor found at the baccalaureate level, and the H-1B alien must also either possess the degree or equivalent of experience in lieu of education. Three years of progressively more responsible experience substitutes for each year of education missing. The start of employ for each fiscal year begins on October 1 of the same year as filing and until 65,000 H-1B applicants first apply for this status. An addition 10,000 master degree aliens qualify as well. When the availability of these numbers is exhausted, H-1 petitions for other new specialty occupation aliens may not be filed until the next April 1 for work to commence that October 1.

Let the filing begin!

Same Sex Marriage Aliens Not Being Deported - DC and Baltimore

Aliens who are married in same sex marriages have not had the benefit of securing permanent residence by virtue of their marriage like heterosexual couples. In fact, most heterosexual aliens secure permanent residence in the U.S. based on their marriages so the impact is big on other than heterosexual couples..

In what may be a sea change on this issue, the Washington, D.C. and Baltimore, MD. offices of USCIS have halted removal of aliens in same sex marriages. This is as a result of the Obama administration's view that the Defense of Marriage Act is not constitutional. If this policy is applied nationally as it might be expected to be (as immigration and discrimination constitutionality are national issues), for the first time in U.S. history, other than heterosexual U.S. citizens might marry and transmit permanent residence to their spouses. 

This policy change could affect many thousands of couples.

Yardum-Hunter 8th Year Super Lawyer

Alice Yardum-Hunter was awarded the "Super Lawyer" designation for the eighth year in a row starting in 2004 to 2011. She is one of fewer than 5% of immigration lawyers in Southern California to be named this year. It is far rarer to have won the award eight times. "Super Lawyers" are chosen by their peers as the best in their specialties based on personal knowledge of the quality of their work. To verify the winners, a Blue Ribbon panel of experts verifies backgrounds to confirm the "Super Lawyer's" credentials. Winners are published annually in Los Angeles Magazine, the New York Times, Law and Politics, among others. Ms. Yardum-Hunter is humbled by this award.

Provisors Speech by Yardum-Hunter

Ms. Yardum-Hunter will speak for Provisors, the group of trusted advisors, at the law firm of Lewitt, Hackman, Shapiro, Marshall and Harlan, located on Ventura Blvd, in Encino, CA, on January 26, 2011 on "Immigration Dreaming: Beyond the Dream Act."

So much goes on in immigration on a daily basis. It's impossible for any one person to stay on top of all developments, but members of Provisors will learn what goes on beyond the sound bite in the media when it comes to immigration law.

Possible EB-2 Congressional Fix

Judiciary Committee Representative Issa introduced H.R. 43 which would abolish the DV Lottery and move those 55,000 visas per year to the EB-2 advanced degree holder's employment based immigrant category. This bill benefits particularly Indian and Chinese nationals with masters degrees in process of getting permanent residence who face long waiting periods for case processing. It would help those educated in the U.S. and abroad who hold masters degrees (or the U.S. educational equivalent) from all countries. It would also help EB-3 professionals and skilled workers if there are unused EB-2 visas from the 55,000 which would be allotted to them. 

This is the first reform of legal business immigration reform contemplated in a very long time. It is overdue but most welcome to employers and their educated immigrant employees processing for permanent residence.

Yardum-Hunter to Speak for American Bar Assn.

The American Bar Assn. will host Ms. Yardum-Hunter in a teleconference pm November 16 at 11 am for 90 minutes as she will deliver a talk and moderate a panel on issue spotting, hypotheticals, and deciding whether to practice immigration law. This seminar is intended for an audience of lawyers who wish to learn about immigration law.