I don't usually toot my own horn in this blog, but I am particularly happy with this outcome.
A client was referred to me by a larger law firm. The client (a company in Europe) needed to send an employee to the US for about six months. The client (Company A) was contracted by Company B to provide telecom services, which would be performed for Company C. My new client was worried about losing the lucrative contract with Company B if they couldn't find a solution.
Normally, a multinational transferee would come to the US in L-1 status. However, the contracting arrangement made that option more difficult, because of USCIS restrictions on placing L-1 holders at third-party worksites. Further, the L-1 processing time meant that the assignee might not be approved when needed (assuming he was approved at all).
We considered an E-2 (treaty investor), but Company A was ultimately owned by individuals who did not qualify for treaty status.
The answer was a visa called "B-1 in lieu of H-1B." This is not a very common visa, but perfect for this situation. The visa allows people to come to the US to perform services that would normally qualify for H-1B (specialty occupation) status, if the worker is staying on the foreign payroll, being paid from outside the US and the assignment is very short. The visa is not the same as a regular B-1 business visitor, and requires specific paperwork for the consulate application.
We drafted a detailed letter for the consulate, explaining how the foreign national and assignment qualified and using appropriate legal arguments. To our delight, the visa was approved a few days later!
The client was thrilled (as evidenced by the number of exclamation marks she used ;)) and I was almost as excited!
"They just called D_____ from the Embassy and they told him to go there tomorrow with his passport so that they can put the visa on it !!!
That was really quick!!! I can’t believe it’s true!!! J
Thank you so much Elaine!!!"
For information about this visa, H-1Bs, L-1s, or any other employment-based immigration, contact Elaine Martin for free initial consultation.
The US Department of State (DOS) has published instructions for the next round of the Diversity Visa (DV) lottery here.
The online entry registration period for the DV-2020 lottery is Wednesday, October 3, 2018 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and ends on Tuesday, November 6, 2018 at 12:00 noon EDT.
What is the Diversity Visa program?
Congress established the diversity visa program through the Immigration Act of 1990 in an effort to promote immigration from countries underrepresented in the United States. In the DOS's own words:
DVs are intended to provide an immigration opportunity for persons who are not from “high admission” countries. U.S. law defines “high admission countries” as those from which a total of 50,000 persons in the Family-Sponsored and Employment-Based visa categories immigrated to the United States during the previous five years. Each year, U.S. Citizenship and Immigration Services (USCIS) counts the family and employment immigrant admission and adjustment of status numbers for the previous five years to identify the countries that are considered “high admission” and whose natives will therefore be ineligible for the annual Diversity Visa program.
What is the screening process?
Diversity visa applicants undergo the same screening process as all intending permanent residents. This includes a background (criminal) and medical check and all are interviewed by a US government official before approval.
In addition, every DV entrant must have at least a high school education or its equivalent or have two years of work experience within the past five years in an occupation that requires at least two years of training or experience.
President Trump has alleged that DV holders are "the worst of the worst." In 2017, he stated "[t]hey give us their worst people, put them in a bin... they're picking the worst of the worst..." (link) This is a gross mischaracterization of the DV program - and insulting to DV entrants like me. As mentioned, DV holders are screened before approval. The US government, not the DV holders' governments, decides who gets approved. Finally, DV holders apply voluntarily, they are not sent by anyone.
What countries are eligible?
It is easier to list the countries that are NOT eligible. For DV-2020, natives of the following countries are not eligible to apply (because more than 50,000 natives of these countries immigrated to the United States in the previous five years): Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Even if you were not born in one of the eligible countries, you might be able to claim that country if (a) your spouse is from that country, or (b) one of your parents was born in an eligible country. For full details of how this works, see
Do I need a lawyer to help?
No, you do not need a lawyer to help with the application. Please be very wary of anyone who suggests that they can influence your chances of success, or states that your chances are better if they "help" with the application. If you believe that someone is making such a false claim, please contact this resource:
As a "winner" of the lottery myself, 24 years ago, I encourage everyone who is eligible to apply as early as possible. The odds may be long -- but they are even longer if you don't apply. Good luck!
A federal judge ruled that the Trump administration must fully restore the DACA program, but delayed the order until August 23, 2018, to allow the government to respond and appeal.
In the decision, the court stated, “The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.” The court also denied the government’s motion to reconsider, stating that “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.”
Additionally, the court states that it does not hold that DHS lacks the statutory or constitutional authority to rescind the DACA program, but rather that “if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision.” (NAACP v. Trump, 8/3/18)
What this means is that if the court’s order goes into effect on August 23, the original DACA program will be restored in full and the administration will be required to accept not only renewals of existing DACA grants (as is currently the case), but also new DACA applications as well.
Contact us to discuss your eligibility for DACA as soon as possible.
U.S. Citizenship and Immigration Services (USCIS) has issued new guidance to immigration officers, allowing them to initiate removal (deportation) proceedings. The new guidance greatly expands the circumstances when USCIS will issue a Notice to Appear (NTA), i.e. the document that starts proceedings.
USCIS was never meant to be tasked with immigration enforcement. When the Department of Homeland Security (DHS) was created after 9/11, immigration was separated into three agencies:
USCIS has long had the authority to issue NTAs and initiate removal proceedings. However, it typically only did so in serious cases that met DHS’s enforcement priorities. USCIS rarely, if ever, issued an NTA after the denial of an employment-based application for benefits when an applicant had no history of fraud, criminal activity or immigration violations.
In early 2017, however, President Trump issued an executive order that greatly expanded DHS’s enforcement priorities to include a wide range of conduct that was not previously prosecuted, and ordered agencies to develop policies consistent with these priorities. In turn, DHS issued an implementing memorandum limiting immigration officials’ authority to use discretion to decline to prosecute certain classes of foreign national, subjecting many more foreign nationals to removal proceedings. USCIS’s new NTA policy is an extension of the executive order and the DHS memorandum.
Specifically, the new policy "...requires USCIS to issue an NTA in the following categories of cases in which the individual is removable...
The final bullet point above is one that most alarms immigration lawyers, especially given the increasingly hostile immigration environment in which we work now. USCIS is denying perfectly good cases; issuing arbitrary Requests for Evidence asking for additional information (e.g. asking for proof that a structural engineer really requires a bachelor's degree; requesting a new medical report when the existing medical was unexpired, etc); claiming documents were not provided when they were sent; losing checks, etc. If a case is denied due to USCIS mistake or overreach and a client is placed into removal proceedings, the consequences are devastating.
As noted by the American Immigration Council, "This move essentially ends all prosecutorial discretion, a key tool used by law enforcement and prosecutors all over the country to effectively prioritize cases. In the past, immigration agencies used prosecutorial discretion when deciding under what circumstances to issue NTAs.
Past leaders of USCIS have issued memos against the practice of widespread NTA issuance, noting it was impractical, would divert scarce resources, create longer wait times, and clog the immigration courts. Further, denials of immigration benefits applications are often reversed upon reconsideration or appeal. This means that thousands of cases that will ultimately be approved will be needlessly tossed onto the dockets of an already overburdened court system."
We are very closely monitoring the impact of this and all other changes. We cannot stress enough how dangerous it is to file applications without an immigration lawyer, given the current environment.
Please contact us if you have any concerns.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.