Category Archives: News & Updates

There are plenty of valid reasons to follow immigration law to the letter. Likewise, there are just as many reasons to hire a business immigration attorney to help ensure that your foreign-born workers maintain compliance for as long as they are in the U.S. But by far the number one reason is avoiding the loss of status, which could result in the accrual of unauthorized stay and eventually a 3-year or 10-year bar from the United States.

Criminal and civil court are what most people think of when the U.S. court system is the topic of discussion. If you know anything about American law, you know how different criminal and civil court can be. Guess what? Immigration court is a separate entity altogether. A lot of what happens in immigration court is nothing like criminal and civil court.

While most employment-based foreign nationals will never end up in immigration court, it is interesting to know how it works.

Right to an Attorney

Right off the top, there is no legal right to an attorney in immigration court. The law allows defendants to hire immigration attorneys as they see fit. But there is neither a legal requirement nor access to free representation if a defendant cannot afford an attorney. That’s why, in so many cases, defendants find themselves in court without legal representation.

For the record, very few business immigration cases involving things like H-1B visas end up in court. Most court cases are the result of people entering the country illegally or entering legally but overstaying their welcome. If foreign-born workers follow the law, the chances of ending up in court are slim to none. This is why close coordination with a qualified immigration attorney is so important. 

No Discovery, Either

Not only do defendants not have a right to counsel in immigration court, but there is also no discovery process. That is completely foreign to both civil and criminal court, where both sides are required to present evidence that they plan to use at trial. The discovery process gives both prosecution and defense ample time to prepare.

No such deal in immigration court. Defendants can arrive to their hearings without any advance knowledge of the evidence that will be used against them. Imagine being an immigrant with no legal representation and no knowledge of the evidence to be presented in court. How can you possibly defend yourself properly?

Cases Can Drag on For Years

There is one thing immigration court has in common with civil and criminal court: the potential for cases to drag on for years. Our legal system is set up in such a way as to allow all sorts of legal wrangling on both sides, legal wrangling that can tie up a case indefinitely. Unfortunately, immigration court is at a decided disadvantage in terms of resources.

At least in criminal and civil court, judges are required to maintain a fairly reasonable timeline. Not so an immigration court. For example, a recent story published by MetroWest Daily News briefly discussed a simple green card case that took seven years to resolve. Why so long?

Immigration judges are suffering under an extremely heavy case load. So much so that a single motion can lead to a hearing delay of up to two years. All the while, the defendant is left in limbo. There is no way to plan for the future because there is no way to know what the future holds.

In closing, we want to emphasize the fact that the vast majority of business immigration cases never end up in court. But that is because the law is followed to the letter. If you are looking to bring foreign-born workers to the U.S., know that the system is time consuming and complicated. Your best bet is to work with an experienced immigration law from like Graham Adair. We can help you maintain compliance throughout the process.

Foreign nationals from other countries working in the U.S. tech sector have taken a hard hit in recent months. Multiple rounds of layoffs have affected primarily L-1 and H-1B visa holders in IT. Thousands of workers have been left scrambling to find new jobs that would allow them to stay in the U.S. Is it possible some laid off L-1 workers are trying to go H-1B instead?

Anything is possible. In fact, we have seen numerous online articles encouraging laid off L-1 workers to look for employment that would make them H-1B eligible. There is just one problem: the H-1B visa program has annual caps.

L-1 Visas for Managers and Executives

As immigration attorneys, we believe it is fair to say that laid off L-1 workers are worse off than their H-1B counterparts. We say this for a couple of reasons. First and foremost is the fact that the L-1 visa is reserved for managers and executives transferring to the U.S. from within the same company.

This automatically puts laid off L-1 workers in a defensive position. They cannot simply go to work for another American company on an L-1 visa. They would have to leave the country, get hired by a new company, then transfer back to the U.S. on a new visa.

The other problem is potentially more serious: L-1 spouses working on L-2 visas are required to stop working when the original L-1 worker is laid off. Now you have two people living in the U.S. with no income and a requirement to leave the country within a given amount of time.

Converting to the H-1B Visa

The plight of thousands of laid off L-1 workers has led to some immigration law experts encouraging they convert to H-1B visas. But again, most H-1B visas are subject to an annual cap. That being the case, there are six options if you miss this year’s H-1B lottery:

• Try to find a position that can get the employee into the next H-1B lottery and hope for the best.
• Try to find an H-1B job that is exempt from the annual cap.
• Apply for a B2 visitor visa to buy some time to figure out what to do next.
• Enroll in a higher level academic degree to qualify for additional OPT time.
• Find another work authorized status, such as citizenship-based work visas.
• Return to your home country.

The benefit of the fourth option is being able to continue living and working in the U.S. for a couple of years following the completion of your course of study. This is possible due to a policy created by a Department of Homeland Security (DHS) and USCIS rule implemented a few years ago.

F-1 For Study Purposes Only

Under the original law enacted by Congress, the F-1 visa was intended for study purposes only. A foreign student could come to U.S. solely for the purposes of studying. At graduation, the student was expected to return home.

DHS changed that with a rule that allowed two things. First, students could begin working here even as they conducted their studies. Second, they could continue working here for up to an additional three years after their studies were complete. On a typical four-year degree program, a student could legally live and work here for up to seven years. However, caution should be taken for work performed prior to graduation since fulltime pre-completion OPT can count against post-completion OPT time. Part-time work typically does not count against post-completion OPT time. 

At any rate, L-1 and H-1B visa holders recently laid off due to tech sector downsizing are struggling to figure out what to do next. Here at Graham Adair, we are immigration law experts who navigate these situations regularly. If we can help, we would be more than happy to discuss your case.