Category Archives: News & Updates

Immigration attorneys are often asked by former clients about the I-140 petition for their foreign workers. Known officially as I-140, Immigrant Petition for Alien Workers, it is a document employers can file with U.S. Citizenship and Immigration Services (USCIS) in support of a foreign worker becoming a permanent resident.

How much do you know about this petition? Like almost everything else involving the USCIS, there are certain rules and guidelines that apply to the I-140 petition. You need to know all the ins and outs, similar to fully understanding the H-1B visa process.

Temporary Work Visas

Most work visas issued by the USCIS are temporary in nature. They do not give foreign workers permanent status. Upon expiration, a work visa needs to be renewed. But note that it cannot be renewed indefinitely. If a foreign worker wishes to stay in the U.S. permanently, that person must apply for permanent resident status or become a citizen.

The former option is made possible with the I-140 petition. This is a form completed by an employer and submitted to the USCIS on behalf of the employee in question. Submitting the form is the very first step in granting the individual permanent resident status.

In order for a worker to be eligible for permanent status, they must be part of one of the following five worker groups:

1. EB-1: Priority Workers.
2. EB-2: Professionals with Advanced Degrees or Exceptional Ability.
3. EB-3: Skilled Workers, Professionals, or Other Workers.
4. EB-4: Special Immigrants.
5. EB-5: Investors.

This particular qualification is not usually a problem for workers already in the country on an H-1B visa. It can be problematic for workers on other types of visas. However, that is a topic for another blog post.

Employers Must Support the Petition

Employers should also be aware that filing the I-140 will not be enough on its own. Rules require that the petition be supported with a variety of documents. For example, it is assumed that the employer wants to offer the foreign worker a permanent placement job. The employer would submit a copy of a job offer with the petition.

Additional documents are required to prove the following:

• The employer has the ability to pay the prevailing wage.
• The worker possesses the proper qualifications for the job.
• The foreign worker’s employment will not negatively impact U.S. citizens.

The last qualification could be the most difficult of all to prove. For example, an employer may have to demonstrate that there are not enough U.S. workers to fill a particular role, creating the need to keep foreign workers here permanently.

It All Takes Time

Underscoring all of this is the reality that things take time with U.S. immigration. In a perfect world, reviewing a foreign worker’s I-140 petition and supporting documents could be completed within a couple of months. But there have been cases in which it takes years. We say this for the simple fact that it is wise to get the process started as soon as employer and employee decide that permanent residency is the best way to go.

In the event a foreign worker’s petition and supporting documents are approved, that individual is then queued up for an immigrant visa granting permanent status. The individual must still apply for the visa, and have one granted, to make things official.

If you employ foreign workers you would like to keep here permanently, and you need help with the I-140 petition or any other part of the process, do not hesitate to contact us. We are business immigration specialists more than capable of walking you through.

A lawsuit filed against SpaceX by the U.S. Department of Justice (DOJ) could have a broad impact on business immigration depending on its outcome. SpaceX, the independent aerospace company founded by Elon Musk, is being accused of discriminating against asylum-seekers and immigrant refugees in its hiring practices.

DOJ attorneys want the court to force SpaceX to retool its hiring policies in such a way that guarantees that refugees and asylum-seekers are on a level playing field with all other candidates looking to work for the company.

A Confusing Set of Laws

As immigration attorneys specializing in business immigration law, we know how confusing the rules and regulations for hiring foreign workers can be. Immigration law is terribly complex and hard to navigate. SpaceX is dealing with an additional problem: balancing immigration priorities with import and export law. Indeed, that is the crux of their defense.

SpaceX design and manufacture rockets. Therefore, they must comply with the International Traffic in Arms Regulations (ITAR). They claim that ITAR bars them from hiring anyone who is not a U.S. citizen or green card holder. If that is true, refusing to hire asylum-seekers and refugees is not discrimination.

Unfortunately, the DOJ does not see it that way. Legal experts say that SpaceX isn’t alone in interpreting import/export law the way they do. Conflicts between ITAR and immigration law involving U.S. persons is fairly common.

Still U.S. Persons

The DOJ argues that asylum-seekers and refugees are still considered U.S. persons under ITAR. That being the case, they need to be given the same consideration for open positions as any other workers. They hope to force SpaceX to acknowledge as much. They also want the company to change its hiring practices to include more asylum-seekers and refugees.

It seems to us that the case will pit immigration law against national security interests. How the court will ultimately decide is anyone’s guess. We also fully expect appeals from whichever party loses the case. This one could take years to resolve. That is not unusual.

Competing Laws and Interests

The case against SpaceX exemplifies why it is so important for companies to retain business immigration attorneys. Any company that hopes to bring foreign workers to U.S. soil needs to go about things the right way. They need to follow the law explicitly, dotting all the I’s and crossing all the T’s.

In SpaceX’s case, they are up against competing laws and interests. On the one hand, their entire business could be compromised if they run afoul of ITAR regulations. But they are also a target of DOJ attorneys looking into employment discrimination. They either need to find a way to balance two sets of regulations or choose the lesser of the two evils and hope for the best.

Unfortunately, stories like this are not so uncommon in business immigration. Theoretically, immigration law should be straightforward and easy to understand. But it is not. Even the simplest of principles is often made more complex by competing rules, procedures, and policies. It is no coincidence that courts are overwhelmed by immigration cases.

We Are Here to Help

We sincerely hope that your company never runs into serious immigration problems. If it does, we might be able to help. As business immigration specialists, we make it our business to stay abreast of all current rules and regulations.

Even if your company is not facing a SpaceX-like lawsuit, we can assist with more basic tasks like helping with the H-1B and I-140 processes. We can help you make sure that you do everything by the book.

Immigration attorneys across the country waited with anticipation in the weeks leading up to the Supreme Court’s ruling in UNITED STATES v. HANSEN, a case that promised to shed new light on how free speech impacts immigration matters. Now that the ruling has finally been released, we want to let our clients know what it means for business immigration.

In the simplest possible terms, Hansen will have little practical impact on legitimate business immigration activities. Businesses, foreign-born workers, and immigration attorneys will not have to change what they do for the most part. The only exception would be activities covered by Hansen’s narrow interpretation of a law passed in 1986.

More About the Case

Hansen arose from a case in which a man named Helaman Hansen was convicted under the 1986 statute for helping undocumented immigrants stay in the country illegally through adult adoption. Hansen was convicted of mail and wire fraud in addition to violating the 1986 law.

That law makes it a crime to willfully encourage or induce undocumented immigrants to come to, or stay in, the United States for any reason. Hansen’s legal team wanted his convictions for unlawful encouragement or inducement thrown out based on First Amendment grounds.

In its ruling, SCOTUS upheld the convictions based on the fact that Hansen’s encouragements and inducements were part of a broader criminal scheme. At the same time, the seven justices who participated in the majority decision indicated that future prosecutions needed to take a much more narrow approach to interpreting the 1986 law.

Business Immigration Largely Unaffected

After reading the ruling, our immigration attorneys are fairly confident that business immigration is largely unaffected. Employers trying to help foreign-born workers navigate the immigration system in the hope of obtaining a work visa are not inducing or encouraging illegal immigration. They are working within the system.

On the other hand, Mr. Hansen was promising a path to citizenship where none existed. As Justice Barrett explained so well in her opinion, there is no legitimate path to citizenship through adult adoption. It simply does not exist within U.S. immigration law.

Follow the Law and All Is Well

The end result of Hansen is that prosecutors will still be able to bring charges when suspects willingly induce or encourage illegal immigration. But as long as speech does not meet the threshold for illegal inducement or encouragement, people are allowed to say whatever they want about U.S. immigration.

This means charities are protected. So is the grandmother who encourages her grandchildren to stay in the U.S., where life is better, even though their visas have already expired. Grandma’s activity would only become illegal if she actively helped her grandchildren skirt the law.

Likewise, American employers are not in danger of violating the 1986 statute as long as their activities are conducted within the scope of legal business immigration. Hansen should have very little impact on what employers do in terms of recruiting, completing paperwork, helping workers navigate the system, etc.

Graham Adair Is Here to Help

We sincerely hope this update on Hansen provides reassurance to clients worried that the ruling might make business immigration more difficult. We do not suspect it will. If you do run into any problems, rest assured that Graham Adair is here to help. Business immigration is our specialty.

Our expert immigration attorneys can assist you and your foreign-born workers in navigating the immigration system, obtaining visas, and more. Feel free to contact us to set up a consultation. Our goal is to help make the immigration process as easy as possible.

Florida has been in the news a lot lately, and not for its sunshine and world-class theme parks. Rather, a new immigration law now in effect in the Sunshine State has taken center stage. We felt it appropriate to discuss what employers in Florida, and elsewhere, should know about that law.

The law in question was passed during the 2023 legislative session and signed into law in May. It became effective on July 1. Since then, Florida’s Governor, Attorney General, and Statewide Prosecutor have been sued by a number of organizations led by the Southern Poverty Law Center and ACLU.

Main Provisions of the Law

Although the lawsuit against the state of Florida focuses primarily on two provisions, the law is actually broader than what critics contend. Below are the law’s main provisions. Note that the first two are covered in the previously mentioned lawsuit.

The law:

• criminalizes the transportation of undocumented individuals into Florida.
• requires ‘inspection’ of suspected undocumented individuals before they can be transported.
• increases the requirements for using E-Verify to verify work eligibility.
• requires some medical facilities to include a citizenship question on intake forms.
• limits social services intended for immigrants without permanent legal status.
• strengthens the state’s relocation program for undocumented individuals.

Regardless of where you might stand on Florida’s new law, it has little impact on legal business immigration. Its impact is also limited to the Sunshine State for now. It is not the law of the land throughout the United States.

Immigrant Rights Are the Core

As the suit against Florida makes its way through the courts, immigrant rights will be at the core. Florida lawmakers crafted the legislation to make it very specific to undocumented immigrants in Florida. Under a strict reading of current state and federal laws, court rulings on this matter should be a slam dunk. But nothing is guaranteed in the U.S. judicial system.

How justices interpret immigrant rights will impact the rulings. If you are a Florida employer with a vested interest in the outcome of this case, expect it to go all the way to the state Supreme Court, at the very least. It could eventually reach the U.S. Supreme Court depending on how lower courts rule.

The Law’s Impact on Foreign-Born Workers

Although the law does place a significant burden on Florida employers to ensure they are not hiring people without proper documentation, the law’s biggest impact falls on workers. Florida’s agricultural and tourist sectors rely heavily on foreign-born workers, many of whom come from south of the border.

It has been suggested that an immigrant exodus from Florida is already underway. We haven’t been able to verify that ourselves, but it would not be unexpected given the new E-Verify requirements.

At any rate, legal business immigration should continue in Florida unabated. Likewise for business immigration throughout the rest of the country. As long as employers and foreign-born workers follow the law, complete the required paperwork, and do what needs to be done to get the appropriate visas, there should be nothing to worry about.

Legal Help When You Need It

Florida’s new immigration law aside, it is no secret that U.S. immigration law is complex and often hard to understand. Here at Graham Adair, we make it our business to know and understand the law thoroughly. We are here to offer legal help when you need it most.

We expect business immigration to continue without much impact from Florida’s new law or its subsequent court case. But we will keep an eye on how that case moves through the courts.