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Categories News & Updates

Two Recent Immigration Cases Led to Big Policy Changes

As immigration attorneys, part of our responsibility toward clients is paying attention to court cases that may affect their residency. Two such cases were decided earlier this year in such a way that led to big policy changes at the USCIS. The changes relate to the 3- and 10-year inadmissibility bans previously applied to foreign nationals seeking permanent re-entry.

In short, the established 3- and 10-year inadmissibility periods that apply to foreign nationals living unlawfully in the U.S. begin as soon as an affected person either departs or is deported, and is dependent on the length of the unauthorized stay, whether more than 6 months or more than 12 months. Both periods run uninterrupted until they expire, regardless of where the person in question resides during that time.

Separate from U.S. Residency

One of the two cases that led to the policy change involved a Japanese woman who had overstayed her immigration status for over 12 months prior to being deported. Because her unauthorized stay was more than 12 months, her deportation meant a 10-year ban on re-entry to the United States. She left the country but subsequently returned after marrying an American citizen, which required a waiver of the 10-year ban. 

Some 18 years later, she applied for permanent residency status but was denied based on an interpretation of immigration law that disqualified her 18 years of marriage, thereby indicating she could not apply for admission until her 10-year ban expired.

The woman and her immigration attorneys filed a lawsuit which was eventually heard by a federal court in California. The court ruled that federal immigration law does not provide for interruption of either the 3- or 10-year admissibility bans based on subject residency. In other words, the plaintiff’s 10-year ban continued uninterrupted even though she resided in the United States.

A Change in Policy, Not Law

In response to the two cases, the USCIS issued a new policy over the summer, a policy that essentially recognizes the federal court’s ruling and the department’s willingness to abide by it. However, federal law does not directly address the issue one way or the other. Furthermore, the court’s decision is not binding.

The court did not make the law here. It also did not interpret existing law. Unfortunately, the federal laws that would apply in both cases are so vague as to not answer the central question. So the court decisions apply only to their respective cases.

As long as USCIS maintains the recently changed policy issued over the summer, their administrative decisions will be based on the concept that 3- and 10-year bans on readmission run interrupted from the moment they are put in place. However, this is not to say that the department cannot reverse the policy in the absence of any further court rulings.

You Need Experienced Immigration Attorneys

If nothing else, the court cases and subsequent policy change illustrate why experienced immigration attorneys are so important. In both cases, it was the hard work of the immigration attorneys that resulted in favorable rulings for the plaintiffs. In the aftermath, the same attorneys will be keeping an eye on things.

We will be keeping watch as well. Our role as immigration attorneys requires that we pay attention to government policies, court cases, and anything else that might affect our clients. We make it our business to know the law so that we can offer our clients the best possible representation.

If you have any questions about how the recent policy change may affect the status of your case, do not hesitate to reach out to our law offices. A member of our experienced immigration law team will answer your questions and help you understand how, if at all, the policy change affects you. Know that we are here for you.

Please contact us at; (408) 715-7067.

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Categories News & Updates

Why You Should Only Trust a Licensed Immigration Attorney

Immigrants looking to travel to the U.S. legally often rely on what they believe are reputable legal services here in the United States. But not every organization representing itself as being able to offer legal advice should be trusted. Both individuals and companies should only trust a licensed immigration attorney.

A recently resolved case in San Francisco illustrates the dangers of utilizing the services of self-proclaimed immigration specialists without checking to see if they are licensed attorneys. The case actually dates back to 2017, when the city ordered a local notary to stop providing legal services. Non-licensed individuals sometimes pass themselves off as specialists in the field and offer what they describe as a savings from not using a licensed attorney. These individuals often add costs as they go, such that the savings they claim to be providing disappears quickly. Worse than that, they can jeopardize a person’s immigration status by not providing the right level of legal knowhow. 

Immigration Attorneys Are Specialists

Here in the U.S., immigration attorneys are specialists. We are licensed attorneys that specialize in immigration law. This is what makes us the most qualified to offer services relating to business immigration, H-1B visas, etc.

In the San Francisco case, you have an individual who was licensed as a notary but not an attorney. He is also an immigrant himself. In the customer’s native country, an immigration attorney is actually just a notary with additional knowledge pertaining to immigration law.

Immigrants looking to come to the United States may not be able to draw such distinctions. They may not know the difference between immigration attorneys in their home country as compared to those here. So they are more susceptible to bad actors posing as immigration attorneys without actually being licensed practitioners.

Ordered to Stop Practicing

Getting back to the case in San Francisco, the defendant was ordered to stop providing legal services back in 2017. He chose to violate that order. He was again cited, and his case began winding its way through the courts. The most recent decision came from a San Francisco Superior Court who deemed the defendant’s services “fraudulent immigration services.”

That is a strong language, as it should be. An immigration consultant is not an attorney unless they also possess a law degree and a state license. A notary with no license to practice law is certainly not an immigration attorney.

Why It Matters

If you are an immigrant hoping to come to the States to work, you may not be clear as to why any of this matters. It matters for many reasons, the most important being the fact that U.S. immigration law is complicated. 

For example, we mentioned H-1B visas earlier. The H-1B is one of the more common visas for workers entering the U.S. But it is not the only one. There are many, many others a worker can apply for depending on industry, skill sets, and the type of work being performed.

The U.S. also issues green cards to a certain number of immigrant workers every year. Obtaining a green card is an entirely different process with its own set of rules. Applying for a green card when you really need an H-B1 visa would lead you down a long road to nowhere.

Attorneys Know the Law

What this really boils down to is the fact that licensed immigration attorneys know the law. They know exactly what it takes to legally enter the U.S., work here, and stay for as long as possible. And throughout the application process, a licensed immigration attorney provides accurate and invaluable legal advice.

We recommend only working with licensed immigration attorneys. Skip the consultants and notaries. They have neither the knowledge nor the experience to deal with the complexities of immigration law. At best, they might be able to offer some minimal help in obtaining visa application documents. But any serious attempt to legally immigrate requires a lot more.

Please contact us with any questions at; (408) 715-7067.

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Categories News & Updates

Study: #1 Policy Concern for Business Is Immigration

Our position as immigration attorneys offers us plenty of opportunities to gauge the temperature of America’s business climate as it relates to immigration policy. So we weren’t surprised to read the results of a recently published study showing that business immigration is the number one policy concern among U.S. businesses.

The study, the first of its kind, was a joint effort by the National Association of State Chambers (NASC), Littler, and the Workplace Policy Institute. It is billed as a “50-state study on workforce engagement” among the NASC’s members. Given the organization’s size and influence, it is not hard to trust their findings.

Three Key Findings

The NASC study considered a broad range of issues that affect U.S. businesses. As the study’s report explains, immigration policy is “far and away and without a doubt” the most pressing national policy concern. This fact is the first of three key findings detailed in the report. The other two are:

  • Labor Market Needs – State chambers of commerce and their members believe that immigration reform should be addressed with a particular focus on the needs of the current labor market.
  • Visa Availability – NASC members believe the current visa system does not provide for enough business immigration to help employers fill open jobs.

It would appear from the study that business leaders understand that current immigration law was written for a different time. Things have changed dramatically since the most recent rules were implemented. As immigration attorneys, we agree with this assessment. We work with companies that mention the same frustrations over immigration law time and again.

Green Cards and Visas

According to an HR Dive survey conducted in early 2021, more than one-third of U.S. employers were concerned that immigration rules don’t allow for enough green cards in any given year. In addition, more than 40% of the survey respondents do not feel INS issues enough H-1B visas.

Both issues create big problems for companies looking to hire immigrant workers. Limiting both green cards and H-1B visas severely restricts the talent pool. In a tight labor market, a restricted labor pool only makes it more difficult for employers to keep things on track.

Employers have had an especially challenging time since the start of the COVID pandemic. Not only did the pandemic create an economic slowdown that forced a lot of companies to furlough and lay off employees, but it also created an untenable situation when the time came to bring those employees back.

Overcoming the Great Resignation

With COVID pretty much in the rear-view mirror, employers are faced with finding ways to overcome the great resignation. Our experience tells us that plenty of them are willing to look overseas for skilled workers. But with immigration law such as it is, they can only look so far and so often.

Companies are not allowed to bring in unlimited numbers of immigrant workers to fill out their payrolls. Those they can bring in must still go through a long and sometimes convoluted process to obtain a visa or green card. All the while, jobs remain open and the work isn’t getting done.

There has been a lot of talk in recent months about our nation’s immigration problems. Much of the discussion has focused on the southern border at the expense of immigration law reforms that could actually boost U.S. businesses by giving them access to a larger talent pool.

It is no wonder that the majority of U.S. companies consider business immigration the number one national policy concern. It remains to be seen whether our lawmakers in Washington will do anything about it.

Please contact us with any questions at; (408) 715-7067.

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Categories News & Updates

U.S. Immigration and the Backlog of Visa Processing

Imagine being a Brazilian or Colombian citizen hoping to travel to the U.S. on vacation. Make your plans early because it could take six months or longer to get your visas. Likewise for the African business owner looking to travel here to secure important funding. The fact is that America’s backlog of unprocessed visas has become an open secret around the world.

The backlog isn’t helping our national reputation. Whether people come for education, work, business, or leisure, having to wait so long for visa approval is disheartening and discouraging. Those who have opportunities to go elsewhere are more likely to do so.

So what is the problem? Why does it take so long for the U.S. to approve visas? As business immigration attorneys, we can tell you that there are multiple things in play here.

1. The COVID Pandemic

We are all tired of hearing about the COVID pandemic. We are also tired of blaming all of society’s ills on it. But we cannot deny the fact that the pandemic shut down American consulates all over the world. Not only that, but many consulate workers also returned home and did not go back. Consulates are terribly short staffed as a result.

Add to that the fact that there was a surge in visa applications once the government reopened our borders. So now we have a flood of applications and fewer consulate staff members to process them.

2. Government Bureaucracy

Another big issue is bureaucracy. Unfortunately, U.S. immigration law is built on what bureaucracy does best: generate paperwork and involve a lot of people in an otherwise simple process. Bureaucracy has always been an issue where visas are concerned. It only seems to get worse as time goes by.

The amazing thing about bureaucracy is that it doesn’t apply evenly around the world. According to a recent Bloomberg Opinion piece, Australia can approve visitor visas in about six weeks. The UK can do it in seven weeks. It takes the U.S. months. In some cases, tourists can wait years to get their visas.

Our system is not set up to be speedy. It is not set up to be efficient or easy to navigate. As such, bureaucracy slows things down to a crawl. But that’s why we encourage companies looking to bring in foreign workers to work with an experienced business immigration attorney.

3. Skilled Worker Shortage

Yet another contributing factor is a shortage of skilled workers. Companies are having to look outside the U.S. to find potential hires capable of doing the work. Washington knows this, and they are giving priority to business immigration over other immigration needs. Those wishing to come to the U.S. as tourists ultimately end up being put on the back burner.

Even with business immigration though, the backlog is significant. A Graham Adair H-1B visa attorney spends a lot more time on each individual case as compared to just four or five years ago.

We have to assume that Washington’s heavy emphasis on business immigration will continue for the foreseeable future. Assuming the U.S. education system doesn’t step up its STEM game, companies will have to continue going overseas for skilled workers.

Don’t Wait Too Long

If your company is hoping to bring immigrant workers into the U.S., we urge you not to wait too long to initiate the visa process. Work with your prospective hires to get the process rolling as soon as possible. You are going to need some time to get it done. Of course, call on Graham Adair for legal representation and assistance navigating what can be a particularly challenging process.

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Categories News & Updates

U.S. Semiconductor Sector Wants Green Card Reform

A number of companies in the semiconductor industry are grateful to Congress for getting a bill that strengthens domestic chip processing passed and off to the president’s desk. That’s a good step, but now they want Congress to start working on reforming green cards. The industry says it needs access to more highly skilled foreign workers in order to meet semiconductor demand.

They envision an overhauled green card system that, among other things, creates new exemptions that would make more foreign-born workers eligible for permanent worker status. Semiconductor companies want cap exemptions for STEM workers with master’s degrees.

Limited Green Card Approvals

As things currently stand, U.S. law caps the number of green cards issued every year. There are only limited approvals to work with. That means a lot of different things to both foreign workers and law firms like Graham Adair.

An immigrant worker without a green card must have an H-1B work visa, or a similar visa pertaining to their particular type of work. But there is no guarantee a work visa can be renewed when the time comes. A green card would obviously solve that problem. Yet until Congress overhauls the system, limits on annual green card approvals will remain. Executives in the semiconductor industry do not think that this is acceptable.

Enhancing Education at Home

Making it easier for certain types of foreign-born workers to obtain permanent resident status would make life easier on semiconductor manufacturers. And by their own admission, there may not be enough highly skilled immigrants to do all the work. So the industry is also calling for efforts to enhance education at home.

They are urging Congress to find ways to invest in STEM programs. They say the government can do more to develop strategic research and development that will help companies keep up with demand and simultaneously improve national security. Finally, the industry is hoping that America’s colleges and universities will begin developing degree programs specific to semiconductor design and manufacturing.

More Than Just Money

Look below the surface of press releases and media reports and it becomes clear that the semiconductor industry wants more than just money. The CHIPS and Science Act leverages some $280 billion to help the U.S. industry be more competitive. But government money is only as helpful as the number of skilled workers the industry can bring in.

Our current H-1B worker visa program gets the job done. But it is highly inefficient. It takes a lot of time, effort, and help from an experienced immigration attorney to ensure that foreign-born workers get their visas prior to entering the country.

An extra layer of bureaucracy is added when H-1B workers attempt to apply for green cards. Another option is to apply for citizenship, but most foreign-born workers don’t want to give up natural citizenship in order to become U.S. citizens.

Inhibiting Unnecessary Barriers

It is clear that our green card system is necessary to help control the immigration process. We understand the government’s role in preventing a large influx of green card applicants who don’t have the education, training, and skills to support themselves. But the types of workers needed within the semiconductor sector are already highly skilled. There are plenty of jobs here for them.

It is highly unlikely that green card cap issues will be taken up this year. Even next year is a long shot. But should Congress eventually decide to reform the process for obtaining a green card, at least one industry wants highly skilled workers capable of designing and manufacturing computer chips exempt from annual green card caps. They make a compelling case.