Month: November 2015

Learn why some naturalization cases get denied

What happens if my naturalization case gets denied? Hi, I’m Jim Hacking, immigration lawyer practicing law here in St. Louis, Missouri. I was at immigration yesterday with a client. He had his naturalization interview. Before he went into the interview he turned to me and he asked me, “Jim, what happens if my case gets denied?” Now he has a very straightforward case and I’m pretty sure it’s going to be approved, everything went well at his interview. But it occurred to me that there’s probably a lot of people out there wondering the same thing, what happens if my naturalization case gets denied, so we shot this video to help you understand the process and what happens next.

There are many reasons why your case can get denied. You can get denied for not having good moral character, you can get denied because of some reason that you didn’t comply with US law at some point, or you might not pass your test. Let’s talk about each of those scenarios. At your naturalization interview you’re going to have the chance to take a civics exam and an English exam. If you don’t pass that test what happens is about 60 days later you’re going to get a second chance to take the test again. So with every N-400 naturalization application you basically get two chances for that filing fee of $680 to take the test and pass the test. If you pass it that’s great and you’re good to go. If you don’t pass it you get that second chance. If you don’t pass it the second time you’re going to have to refile for naturalization maybe at a later date to you give you more time to practice your English and to learn the answers to the citizenship questions.

But I think my client was asking more not so much about what happens if I don’t pass the test, but what happens if my case is denied. Well if your N-400 is denied you have the right to file for an administrative appeal and you do that by filing a form called N-336. There are pros and cons to the N-336. Basically what happens is you’re going to go down the hall to another immigration officer in the same field office. Let’s say you apply for citizenship in Boston and let’s say officer A denies you for some reason and you think that officer A made a mistake. Well then you can file this N-336 paying another filing fee which is another good chunk of money and then you’re going to have to go down the hall about a month or two later to interview again and to explain to the second officer why you think his coworker, the officer A down the hall, made a mistake.

A lot of times you don’t necessarily get that relief you’re looking for when you file an N-336. There’s appeals you can take after that. You can go to federal court and ask a judge to determine whether or not USCIS is correct in denying your citizenship. But in the immediate future after getting denied you’re going to have to do that process of the N-336 where you’re asking them to change their mind on the decision that they’ve reached.

If you ultimately are denied and you don’t appeal then two things can happen as far as when you can refile. Sometimes if there’s just a procedural problem if you didn’t fill out paperwork correctly or if you didn’t respond to a request for evidence or if there’s some flaw in the procedure that you filed then you might be able to apply right away. Again, you’re going to have to pay that filing fee again, but you’re going to get that starting all over, you’re going to have to deal with the fingerprints and you’re going to have to take the test again even if you passed it if you were denied for some procedural defect. You’re basically starting from scratch.

If your case is denied for a reason related to poor moral character, if you have some kind of arrest on your records, some criminal problems, or if there’s some legal impediment to you becoming a citizen you might have to wait for up to five years to refile. Let’s say that you applied and you had a criminal conviction and you were on probation three years ago before your case was filed. Typically you’re going to have to wait until probation is over and add five years to that date to refiling. Sometimes when people come in to see us we tell them it’s too early to file, you should let your probation run, let your five years run so that when USCIS looks back at the last five years you have a clean record. It’s not a guarantee that it’s going to get approved but it certainly helps things.

These are the kinds of things that can happen if your naturalization case is denied. We certainly hope that doesn’t happen to you, but a lot of people want to be prepared for whatever might happen so we made this video and we hope you find it helpful. If you did find it helpful do us a favor and click like so that other people can see our message, and if you can subscribe to our YouTube channel, we update it regularly with new immigration content all the time and it’s a great way to stay informed on developments in the law. If you have any questions give us a call, 314-961-8200, or you can email us at info@hackinglawpractice.com. Thanks a lot.

 

Helping a client get his green card and passport back at deferred inspection

Here’s how we helped a man get his green card and passport back from Customs Boarder Patrol at the airport this week.

Hi, my name is Jim Hacking. I’m an immigration lawyer. We practice immigration law throughout the United States out of our offices here in St. Louis, Missouri.

This week we’re real excited to help a really good guy to get his green card and passport back. Let me tell you a little bit about what happened. This fellow has an employment based green card. He’s had it for about a year and a half, but last month he was going through customs in Toronto.

He’d gone to Canada for a business trip and he was on his way back, and he was by himself. You do customs in Toronto actually when you’re flying back to the United States, you don’t do it when you land, you do actually in Canada. When he went through customs they flagged him because he’d been arrested three years ago. Now this had never come up in any of his prior travels. He is a world traveler. He leaves St. Louis and leaves the United States all the time, but this particular time something came up in his record, so he was given what’s called deferred inspection.

I always like the explain to people that customs works sort of like a traffic sign, a traffic light. First you can have a red light which means they’re not going to let you into the country. A green light means go on through and you’re admitted into the United States, and the middle ground, the yellow light, is deferred inspection. What that means is that you have to come back to the airport after you’ve landed in your home town, and you’re going to have to go up to the airport and bring them documentation of whatever it is they were worried about.

This young man had been arrested three years earlier on a New Year’s Eve. What happened was, is he got drunk at a casino and he had taken a few chips that did not belong to him. When he sobered up the next day he had gone and paid the money back around $19,000. He had been arrested in the process by the Missouri Highway Patrol, which is the agency that conducts gaming investigations.

Nothing ever came of the case. The arrest had been almost exactly three years ago and the St. Louis Circuit Attorney had decided not to prosecute him, so nothing ever came of it, but the arrest was still flagged on his departure and arrival record that CBP saw. They were worried about that and they gave him deferred inspection.

He got on our website and I remember, he was one of our first people to use this new feature we have on the website, called peer-chat. Peer-chat allowed him to talk to me. I was actually barbecuing at the time, and we went back and forth. It was the day after he had come back to St. Louis and he was extremely worried, very upset about this incident. He traveled a lot for work, sometimes he travels with co-workers, and he was worried that this was going to be a problem for him. Even on a bigger scale, he was worried that he was going to lose his green card. He had not gotten his passport back either, so he was very upset.

I tried by chat to put everything at ease. I also agreed to meet him the next day and we got together and I looked everything over. He had actually gotten a police report, he’d already had that from the arrest. We went over it and I tried to allay his fears and to let him know that nothing was probably going to happen and he would probably get his green card back.

We went and we did our due diligence. We got certified copies of the arrest record. We got certified copies from St. Louis County and St. Louis City showing that he’d never been prosecuted for this. We got more information from the court’s online system, to demonstrate that nothing had ever happened to this fellow and that really there was no reason for him to have received deferred inspection.

We went out a few Wednesdays ago but it turns out that that day was a Federal Holiday and customs and boarder patrol was closed in St. Louis on a Federal Holiday, which is something I didn’t know. I knew the head of the office and I emailed him the entire packet that we had brought out that day. I also emailed him a picture of my client out there that day, just so that he’d know that we had arrived.

We came out one week later and when we walked into the little waiting area in Customs, I picked up the phone and I called the Customs Official and he came out carrying the passport and the green card. Now you always know that’s a good sign, when the Officer has those documents with him. We exchanged the originals for the passport and the green card. My client and I were in and out of there in about twenty minutes, which I think is a record for us, for our fastest deferred inspection appointment.

My client was ecstatic. He gave me a hug which was great because as a lawyer, I used to do a lot of insurance work, and you don’t really get many hugs from insurance companies. It’s pretty exciting when your client is that happy and that excited, to see what a change and a benefit you can bring to someone.

He’s going to keep a certified copy of that file with him so that whenever he travels he’ll always have that with him. We think that that’ll cut down on any other problems he’s going to have in the future. He’s also going to register for the Global Entry Program which will hopefully allow him another opportunity to “clean this up.” We think he’s on the right track, we’re sure that he’s going to be able to get citizenship a few years down the line. He’s a great guy and we’re really happy for him

If you have questions about deferred inspection there’s other information on our website, or you can email us at info@hackinglawpractice.com. You can give us a call at [314] 961-8200. Now if you liked this video please click like, and also subscribe to our YouTube channel where we try to update this site about two or three times a week, and to give you as much information about the immigration process as possible.

Thanks a lot, have a good day.

Convictions in Texas H1B visa fraud case

A pair of brothers that hired H-1B workers have been found guilty of breaking federal law on November 12.  The six day long trial took place in the U.S. District Court in Dallas.  The brothers, Atul Nanda and Jiten Nanda, are each facing conviction of one count of conspiracy to harbor illegal aliens and conspiracy to commit visa fraud and four counts of wire fraud.  Dibon Solutions, an IT consulting group owned by the Nanda family, is involved in the case.  Their indictment was filed by the United States in 2013.  

They could potentially face 20 years in prison and fines up to $250,000.  Their sentencing date has yet to be set.  

The U.S. claimed that the Nanda brothers had recruited foreign citizens and represented H-1B visa workers with the intention of working at Dibon Solution’s office in Texas.  They went on to say they “did not have an actual position at the time [the foreign workers] were recruited,” and that the employees actually were providing their services to third-party companies.  

DOJ

The government further said, “paid for time spent working at a third-party company and only if the third-party company actually first paid Dibon for the workers’ services.”

“The conspirators falsely represented that the workers had full-time positions and were paid an annual salary, as required by regulation to secure the visas,” the government said about the conviction.  

The investigation was conducted by the U.S. Department of Homeland Security, DHS’s Immigration and Customs Enforcement Agency, and the U.S. Department of State.  The government claimed that Dibon Solutions were given “a labor pool of inexpensive, skilled foreign workers.”  This scheme was found to be profitable.  They went on to say, “required minimal overhead, and Dibon could charge significant hourly rates for a computer consultant’s services.”

The Nanda brothers “earned a substantial profit margin when a consultant was assigned to a project and incurred few costs when a worker was without billable work,” said a government report.  

No such thing as an H1B transfer?

There’s no such thing as an H1B transfer.

What?

I am Jim Hacking, immigration attorney practicing law throughout the United States and based here in St. Louis Missouri. We have a lot of visitors through our website and people who send us emails or call the office wanting to know how to transfer their HIB from one employer to another. We also get contacted by employers who want to hire someone who already has an approved HIB. We felt we’d make this video to clear up some of the misconceptions between the whole HIB transfer issue. The reason I put the transfer in air quotes is because there’s not truly a transfer. You’re not transferring anything from one employer to another. What is really happening is a new HIB visa is being applied for.

Why is this important and how does this impact the international worker? Well, you’re probably familiar with HIB lottery. Every year, too many people applied for not enough visa. In 2015, there were 225,000 visa applications for only 85,000 spots. We’re talking now about the cap-subject HIB visa. HIB visas for the most part if you’re working outside of an institution of higher learning, if you’re working for a private employer, you’re going to be subject to the cap. People who make it through the cap and get an approved HIB, they hold something that’s very valuable. Sometimes those people with valid HIB visas want to transfer their job from one employer to another. They want to know if they can bring their HIB visa with them and more importantly do they have to go through the lottery.

That’s the real thing that’s different about someone transferring in. They’ve already made it through the lottery. That spot that they hold transfers with them and that’s why the HIB is very valuable for them. If an employer comes across someone who has an approved HIB and is working for another employer, they can file a new I-129 petition to get a visa for the person. They still have to go through all the processes and paperwork that are attached to an HIB. In many ways, the HIB transfer is a whole new HIB application. The only difference being that they don’t have to go through the lottery. They don’t have to wait until April 1st to apply. They don’t have to wait until October 1st to start.

If you’re going from a cap-subject employer to another cap-subject employer and you’ve already been approved for an HIB, then you’re going to be able to “transfer” that visa from one employer to another. Now one thing to keep in mind is that a lot of times employers who sponsor people for HIBs will have employment contracts. There will be language in the contract that may or may not govern the transfer itself or the leaving of the employee from the first employer to the second employer. You need to be very careful about that and you need to talk to an attorney in your state that can help you interpret the contract that you may have signed associated with your HIB visa. Putting contractual issues to the side for a minute, you do have the ability to take that HIB visa with you.

An HIB transfer is something that has a lot of appeal to employers too because that freeze them up to find workers during the course of the year when they maybe particularly busy. They may need to hire someone in a pinch. If someone has already gone through the process of getting an HIB, then in many ways, they’re way ahead of the game because the employer only has to go through the paperwork of filing. That filing entails filing a whole new LCA with the Department of Labor. That takes about 10 days. Then if the employer is smart and pays for premium processing, they should be able to get all their paperwork through the immigration service in about 3 weeks or so.

We recently had an HIB transfer and the whole thing took altogether about 24 hours, so we are really happy with that. We file a strong application and the paperwork was all done correctly. The process went very smoothly. These are the things that employers need to think about. These are the things employees need to think about. An employer who’s hiring away an HIB, employer should be careful not to tamper with the employment contract. You don’t want to open yourself up to a lawsuit from the first employer. I’m really surprised that there aren’t more problems between initial employers and secondary employers. I think that’s an area that might develop in litigation and might be right for problems.

If you have questions about the HIB transfer process, if you’re concerned about it, feel free to give us a call at 314-961-8200. You can always email us at info@hackinglawpractice.com. If you like this video, do me a favor and subscribe to our videos on the YouTube channel. That way you’ll be updated whenever we shoot a new video. If you like this video, give us a like. We’d really appreciate it and it helps us get out the read to other people who might like to learn about HIB visas, transfer and all the rest of immigration. Thanks a lot and have a great day.

Lawsuit Helps Man Get Naturalized After Three Years of Waiting

This spring, our office was hired by a young man from Bangladesh.  The man was living in Chicago, working for a Fortune 500 company.  Despite his corporate success, his naturalization case was being delayed by USCIS.  The man had waited over three years to swear his allegiance to the U.S., but he could not get any answers from USCIS.

The man hired our firm to file a lawsuit in federal court in the Northern District of Illinois.  We sued the director of USCIS, the head of the Chicago field office and the Attorney General of the United States.  The lawsuit was a “mandamus” action and sought a judicial order compelling the agency to decide our client’s long-pending case.

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The case had apparently been delayed due to military service that the man had performed back home in Bangladesh.  After we had the defendants served with a copy of the lawsuit, USCIS in Chicago quickly scheduled him for a re-interview to discuss the military issue.

We are happy to report that late last week, our client became a naturalized U.S. citizen.  After waiting more than three years and many efforts to get action his case, the lawsuit we filed for him did, in fact, compel the agency to finally decide the case.

New book reveals steps for international students who want to stay in the U.S.

www.stayingherebook.com

Hello there. This is Jim Hacking, immigration lawyer based in St. Louis, MO, practicing immigration law around the country. I wanted to tell you about an exciting new book that we’ve written. We’re really happy and pleased with the way that it turned out. The name of the book is Staying Here. The point of the book is to help international students, those in the United States studying at universities and colleges around the United States in valid F-1 status, and talking them through the process of how you go from being on an F-1 to maybe getting a work visa, to then maybe getting a green card, and then maybe citizenship.

Obviously there are many steps that go along with the way with that process, so we put together this book and we’re really excited about it. The book tells you everything you need to know about how to maintain your valid F-1 status, about the immigration steps that have to take place in order to get that F-1 student optional practical training, which is the first step in staying here. OPT is good for up to 12 months and I allows students to try out an employer and for an employer to try them out.

www.stayingherebook.com

It also gives them the opportunity to participate in the H-1B lottery. That’s a real problem for international students, international workers, is the number of visas that are available are much less than the number of people who actually want those videos. Sometimes it’s as much as three to four to one, and we’re anticipating that in 2016 that will be the case for sure as it’s been for the past several years.

OPT allows a student to maintain their F-1 status, to get approval from their school to work with an employer, and to then work and make a good showing with the employer to show that the employer might want to go through the expense and the hassle of sponsoring them for an H-1B.

We talk a lot in the book about the H-1B process, about dos and don’ts, things that you need to keep in mind and things that employees need to know when dealing with employers, how to present the need for a visa, how to protect themselves, how to make sure that they don’t get exploited, and the things that they can do to really become rock stars.

Because the fact of the matter is, it’s very expensive and time consuming for a US employer to sponsor someone for an H-1B. There’s a lot of uncertainty in the process. With an H-1B, the employer really has to make themselves so special and show that they’re so unique and so different that the employer is happy and willing to spend that extra money and to go through that extra hassle to try to get through the lottery and get an H-1B visa for their employee.

The book also discusses how once you get that visa how you really have to continue to shine, do a good job, because getting a green card through employment is even more of a hassle. We talk about all those things in the book. We’ve put it all together. You can download it for free at stayingherebook.com. That’s S-T-A-Y-I-N-G-H-E-R-E-B-O-O-K.com. We also have hard copies. If you call at the office, 314-961-8200, we’d be happy to send you a hard copy. If you work at a university or if you have friends, just point them to that website, www.stayingherebook.com. Anyone can download the book for free. Of course we’re always available from follow-up information or questions that people have about optional practical training, about H-1Bs, or about the green card process. Happy to talk it through with you.

But we really hope that before people contact us, or even after, that they read the book, that they take the time to really educate themselves, because too often what we’ve seen is that international students wait until the very end of their studies, and they really need to be thinking about this part of the process from the very beginning. Because the day they land to start their studies, there’s a clock that’s ticking. Eventually that clock’s going to run out. If they don’t do everything they can to protect themselves, to put themselves in as strong a possible to get OPT and H-1B, and hopefully a green card, then they’re really going to have to be facing disappointment and sadness that they have to go back home to their home country.

There’s a lot of good information in this book, a lot of things that universities don’t necessarily tell you or that your friends might not necessarily know. A lot of people think that they can get good information off the internet. We really encourage you to get this book, to get the true facts, and to find out all the things that you could to protect yourself and to get yourself a visa if possible. We wish you all the best of luck. Again, visit the website, www.stayingherebook.com, or you can visit us on the web at www.hackinglawpractice.com. You can always email at that address, info@hackinglawpractice.com. Thanks a lot. We hope you enjoy the book.

www.stayingherebook.com

USCIS Attempts to “Go Digital” are Abysmal Failure

A decade ago, the U.S. government began a push to move all of their immigration forms from paper to digital.  Today, there is only one of those forms online and one way to pay a certain fee electronically.  Meanwhile the 94 other forms can be filed with paper.

Originally, this project was expected to cost a half-billion dollars and be completed in 2013.  The project, which is run by U.S. Citizenship and Immigration Services, is now expected to cost roughly $3.1 billion and be completed around 2019.  According to interviews with federal officials, this will make immigration policy reform much tougher, slow down the process of citizenship for current immigrants and hurt detection of national security risks.  

The state of the project can be blamed on poor management.  It wasn’t until three years after IBM received a $500 million contract, that officials completed basic plans for the computer system.  

Officials at the Department of Homeland Security knew about hundreds of defects in the software by 2012.  The agency continued to use the software because of pressure from the Obama administration.  This happened, in part, because of the administration’s push for reform and the officials wanting to please them.

The only form that is digitally available for filing is an application for renewing or replacing a misplaced green card, which is the document given to legal permanent residents.  According to government documents, many immigrants that applied online have waited as long as a year or never received their new cards.  This made it hard for many of these immigrants to work, travel, and attend school.  

Former president of the union that represents employees at immigration , Kenneth Palinkas said, “You’re going on 11 years into this project, they only have one form, and we’re still a paper-based agency. It’s a huge albatross around our necks.’’

“In 2012, we made some hard decisions to turn the Transformation Program around using the latest industry best practices and approaches, instead of simply scratching it and starting over.  We took a fresh start — a fix that required an overhaul of the development process — from contracting to development methodology to technology,’’ said a spokesman for Citizenship and Immigration Services.  

The spokesman, Shin Inoye went on to say, “Since making these changes, we have been able to develop and deploy a new system that is able to process about 1.2 million benefit requests out of USCIS’s total annual work volume.  Our goals remain to improve operations, increase efficiency, and prepare for any changes to our immigration laws. Based on our recent progress, we are confident we are moving in the right direction.”

If Congress votes to implement immigration reform, the Department of Homeland Security would be able to easily make significant changes to immigration documents.  Currently, immigrants and their lawyers have had to deal with a very flawed process.  They often have to ship documents and even face problems with these documents being lost.  

An immigration attorney is quoted as saying, “It’s in­cred­ibly slow to use the few forms they put online.  Most immigration lawyers have concluded the system is half-baked.’’

Millions of immigrants have to suffer with this archaic process on a daily basis.  Immigrants often miss deadlines due to lost paperwork, which leads to the loss of jobs, traveling and schoolwork.  These immigrants have lost homes and countless opportunities.  

“If there are some bad apples in there who should not get a green card, who are terrorists who want to do us harm, how on earth are they going to find these people if they’re sending mountains of paper immigration files all over the United States?’’ said a D.C. immigration attorney.   

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H1b Fraud detection – Random Site Visits

USCIS has publicly claimed that as one-in-five H-1B applications were either fraudulently filed or included violations of the program itself.  This has led to a significant increase in the amount of anti-fraud investigations by the agency.  These investigations usually involve surprise site visits to the offices of U.S. H-1B employers.  

Many of these investigations are conducted by the Office of Fraud Detection and National Security (FDNS).  This office was created in 2004 to make sure that immigration rules and regulations were being followed. According to the USCIS, FDNS’ primary mission is to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts to make sure that our immigration system is not being abused.

The FDNS conducts random, unannounced onsite inspections as part of the expansion of its Administrative Site Visit and Verification Program, which started in 2009. The agency hires private contractors to send “investigators” out to conduct site visits to H-1B employers to verify if the foreign-born employee is working at the employer and performing the work as outlined in the H-1B petition. The FDNS investigators seek to confirm the identities of both the H-1B employer and the visa beneficiary in order to make sure that both the company and the worker are complying with the conditions of the H-1B visa.  

USCIS

The objective of the unannounced site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the agency has uncovered both technical violations of the law to outright fraud, with the most common violation being the employer’s deliberate or accidental failure to pay the prevailing wage to the international employee.

The investigations are referred to as compliance reviews and are designed to compare information contained in the I-129 petition with the facts on the ground.  The site inspectors verify the information submitted with the petition and that the employer actually exists, take photographs, review documents, interview company personnel and interview the beneficiary.  After the site visit, the FDNS officer issues a Compliance Review Report, which becomes part of the employer’s record.  If fraud is indicated, further investigation may be conducted or the case may be referred to U.S. Immigration and Customs Enforcement.

Appeals Court Thwarts Implementation of Obama’s Expanded Deferred Action Program

President Obama’s expanded deferred action program for those facing deportation suffered a severe blow yesterday.  A three-judge panel of the Fifth Circuit Court of Appeals has ruled that Obama overstepped his authority in implementing executive actions to allow nearly 5 million undocumented immigrants to stay in the U.S. and receive work permits.

While an appeal to the Supreme Court is likely, time may be running out on President Obama’s attempt to provide temporary status to these immigrants.  It is unclear whether the Supreme Court would hear the appeal this term or its next term.  If the case is delayed until the 2016-2017 term, such a ruling would likely be issued after the President left office.

The appellate court, in a 2-1 decision, ruled in favor of the State of Texas and 25 other states that had joined in the legal challenge to Obama’s programs – expanded Deferred Action for Childhood Arrivals (DACA) and a new program called Deferred Action for Parents of Americans (DAPA).  The two judges ruled that the President lacked “statutory authority” to issue the executive orders and that DHS had failed to provide notice and an opportunity for public comment.

According to the judges, federal law “does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.”  The 2 judges rejected what they called an attempt to “change the immigration classification of millions of illegal aliens on a class-wide basis.”

This appeal was supposed to be an “expedited” appeal; however, the two Republican judges took 5 months to rule and their decision was 135 pages long.  The dissenting judge, Carolyn Dineen King, criticized the majority of the “extended delay” in issuing the ruling, for which she said there was “no justification.”  Presumably, the judges took their time in order to slow down an appeal by the Supreme Court.

The two executive orders would have expanded DACA, a popular program that allows young people who arrived in the U.S. without inspection as children to get work authorization and prevent deportation.  DAPA would have granted three-year work permits and temporary protection from deportation to adults in the U.S. who are parents of U.S. citizens and green card holders who have been present in the U.S. for more than five years.