The U.S. Consulate General in Chennai, India has announced that it will no longer process Immigrant Visa petitions. As of January 1, 2012, the U.S. Embassy in New Delhi and the U.S. Consulate in Mumbai will be the only centers in the country that will accept and process Immigrant Visas. For more information, please visit the Consulate’s website.

According to the Department of State’s Foreign Affairs Manual a lawful permanent resident that has remained outside the U.S. for more than one year may be eligible for returning resident status. To qualify for such status, the LPR must demonstrate to the consular officer that: (1) at the time of departure, the LPR intended to return to an unrelinquished residence in the States; and (2) his or her reasons for remaining abroad were beyond his or her control. See 9 FAM 42.22 N1.1.

An LPR that has remained outside of the United States for longer than a year without obtaining a reentry permit (valid for two years) may apply for a Special Immigrant Returning Resident Visa (SB-1). To do this the applicant must submit a Form DS-117, Application to Determine Returning Resident Status, along with available evidence of permanent residence within the United States, to the U.S. Consulate nearest his or her place of residence abroad. Acceptable forms of evidentiary support may include, among other things: evidence that the extended visit abroad was caused by some unforeseen circumstance; evidence of having filed U.S. income taxes within the last year; and evidence of property ownership within the United States. See 9 FAM 42.22 N1.3. After filing his or her questionnaire, the applicant must then submit to a personal interview with a consular officer, in order to determine whether or not (s)he is eligible for returning resident status. Should the consular officer determine that the applicant has met all of the requirements to qualify as a returning resident, the LPR must then submit an application for a SB-1 IV, Returning Resident Visa. See 9 FAM 42.22 N1(i).

Any LPR who wishes to reenter the United States after the expiration of his or her Permanent Resident Card, and an extended absence of longer than one year must obtain a SB-1 IV, after having shown him or herself to qualify for returning resident status through the Department of State’s consular process.

According to §212(a)(9)(B) of the Immigration and Nationality Act (INA), any visitor to the United States who remains in the country without status may accrue unlawful presence. A person that has allowed unlawful presence to accrue for 180 days or more is subject to a three year statutory bar on reentry. For periods of unlawful presence greater than one year, the penalty is a ten year bar on reentry. A person may begin to accrue unlawful presence upon the expiration of his or her I-94. With this in mind, the denial of an application could potentially have negative implications on the status of the applicant for future or subsequently filed applications, if not for USCIS’ policy of equitable tolling.

If a nonimmigrant visa holder files the proper documentation for a change of status or extension of stay in a timely manner (i.e. before the expiration of his or her I-94 or duration of stay), (s)he does not accrue unlawful presence for the time that his or her application is pending. Once his or her original I-94 expires, (s)he is no longer in an authorized status, but is still exempt from the accrual of unlawful presence. The statutory provisions at INA §212(a)(9)(B)(iv) provide that in such cases the first 120 days after the expiration of the I-94 will be tolled for good cause, meaning that they will not be counted as unlawful presence for the purposes of the statutory bar on reentry.

The Adjudicator’s Field Manual (AFM), however, has prescribed much more liberal policies for the Service’s response in such matters. The AFM states that, so long as the petition is not denied on the grounds that it is frivolous or untimely, or that the applicant worked without authorization, unlawful presence will not accrue before a decision is made, no matter how long an application is pending. See AFM at 40.9.2(b)(3)(B). The above statutory and policy protections apply even when the applicant’s request is denied, with the above stated qualification that it must not have been filed frivolously—if the application is found to have been filed fraudulently or in an untimely manner, or if the applicant worked without authorization, the date of accrual begins the day his or her I-94 expired.

Once the applicant’s request has been denied, any further action accrues unlawful presence, including appeals on denied petitions and motions to reopen or reconsider. Unlawful presence accrues throughout the appeals process and is counted against the applicant should his or her motion or benefit be denied. If the motion or benefit is granted, the unlawful presence is removed and the applicant is returned to authorized status extending back to the date his or her I-94 expired. See AFM at 40.9.2(b)(3)(D).

USCIS’ policy of tolling unlawful presence while an application is pending protects applicants from being forced to abandon pending applications upon the expiration of their status. Due to equitable tolling, applicants may remain in the U.S. legally for the duration of the application process, even after their previously approved status has expired.

Secure Communities is a government program instituted by the Department of Homeland Security that encourages interaction between state and local authorities, and Immigration and Customs Enforcement (ICE), in order to increase the efficacy of immigration enforcement and dedicate the highest priority to criminal aliens who pose the largest threat to public safety. DHS hopes that the program will optimize ICE’s use of the limited funds appropriated each year for immigration purposes.

In theory, Secure Communities should not place any greater burden on local law enforcement, but rather should rely on existing information-sharing systems. State and local authorities regularly submit the fingerprints of those they arrest to the Federal Bureau of Investigation (FBI) in order to check for a criminal background. Secure Communities utilizes this system by requiring the FBI to immediately forward the prints on to ICE. ICE then runs the prints through their databases to see the immigration status of the arrestee and to see if (s)he has ever come into contact with ICE before. If the system finds a match for the arrested individual and (s)he is unlawfully present or otherwise removable, ICE then should prioritize removal based on the determination of which individuals pose the greatest threat to public safety as determined by the severity of their crimes.

In making a determination of removability, ICE takes several factors into consideration including: the person’s criminal history, immigration history (e.g. previous orders of removal, etc.), family ties to the U.S., duration of stay, serious medical issues, etc. In cases involving minor crimes, ICE will often offer the person the option of voluntary departure. In such cases, the person must return to his or her country of origin at no cost to the United States government, but is not barred from returning to the U.S. legally in the future (if ordered removed, also known as deportation, the person is barred from reentering the United States for ten years).

It is important to note, however, that the immigration judicial process remains separate from the criminal judicial process. This means that while a person may be found innocent of the crime for which (s)he was arrested, (s)he could still be deported if ICE determines that (s)he violated immigration law. The Secure Communities program does not actually require that the arrested person be convicted of the crime for which (s)he was taken into custody, merely that (s)he is removable pursuant to the regulations set forth in the Immigration and Nationality Act (INA).[1]

This leads many critics of the program to be wary of ICE’s supposed dedication to prioritizing deportations. Fingerprint checks are run through the system at the time of arrest, not the time of conviction. To critics this process seems to undermine the purpose of Secure Communities because it does not provide for the detention and deportation of the most violent criminals, but rather anyone who happens to come into contact with the law. This tendency leads many to worry that the program will do more harm than good.

The Secure Communities program also raises concerns of racial profiling. Many worry that because there is no practical punishment in place for officers who abuse the system, people may begin to take advantage of it, making unwarranted or “discretionary” arrests based on race, simply to question an individual’s immigration background and put him or her into the immigration system.

For Lawful Permanent Residents (LPR) planning to travel outside of the United States for an extended period of time (more than one year), it is important to obtain a reentry permit prior to travel. Applying for a reentry permit before leaving the U.S. establishes that the LPR did not intend to abandon his or her permanent resident status in the U.S. and allows him or her to reenter the country without applying for a returning resident visa. To apply for a reentry permit, an LPR should file a Form I-131, Application for Travel Document, with USCIS approximately six months prior to the intended date of travel. It is important that the applicant file his or her I-131 in advance, as each applicant must attend a scheduled appointment at an Application Support Center in the U.S. to complete his or her biometrics. This part of the application process cannot be completed abroad, and failure to appear could result in a denial of the application.

In the event that an LPR loses his or her valid, unexpired reentry permit, a duplicate cannot be issued. The LPR must file another I-131 to apply for a new permit. In order to prevent fraud, the applicant must present evidence verifying the loss of the original reentry permit (e.g. a police report). This process, however, does not apply to LPRs abroad, as the I-131 process cannot be completed outside of the country. The following are options to be considered by LPRs who have lost their reentry permit while abroad.

The first option available to LPRs who have lost their reentry permit while abroad is to return to the United States as soon as possible. A person with LPR status in the U.S. may travel abroad and return to the U.S. with a valid I-551, Permanent Resident Card (“Green Card”). No further documentation is needed, as long as the period of travel does not exceed one year. This is the best option for those with the ability to return within a year of the date of departure.

If it is not possible for the LPR to return to the U.S. within a year, (s)he must file a Form DS-117, Application to Determine Returning Resident Status. This form, filed with the Department of State, allows LPRs to return to the U.S. after absences of greater than one year, if they can show their intention to maintain their permanent resident status while abroad. As with the filing of an I-131, it is to the applicant’s advantage to show that (s)he possessed a valid reentry permit, and that it was lost, as this will show the applicant’s intent to maintain status.

Summary: In the event that an LPR misplaces his or her reentry permit while inside the United States, (s)he should file a Form I-131 to replace it. If the LPR is outside the U.S. at the time the document is lost, (s)he should try to return before the one year anniversary of his or her departure. If this is not an option, (s)he must file a DS-117 to apply for a returning resident visa.

Traditionally the fees involved in the process of obtaining labor certification and employing foreign nationals to work in the United States have been covered by the employer, but in an increasingly rough market, many companies and employers are attempting to defer some of the costs to the employees themselves. For some of the fees, employers are expressly prohibited from passing the burden onto the beneficiary (the employee), but for others the law is not so explicit.

The employer may never make deductions from the beneficiary’s salary in order to recover expenses incurred in conducting regular business such as tools and equipment, and including “attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition.” See 20 CFR §655.731(c)(9).  The Code is explicit on this matter; the employer is not to pass on any of the costs associated with the H-1B process, if that fee is attached to a part of the process that is to be carried out by the employer.

There are a few deductions which are permissible, so long as requiring the beneficiary to pay the deductions does not drop his or her salary below the prevailing wage specified by the Department of Labor in the labor certification. If the employer imposes unauthorized fees on the employee that push the employee’s actual wages received below the amount required by the prevailing wage, the employer will be required to pay back wages, and may be subject to civil monetary penalties and/or disqualification from future H-1B programs and immigration benefits. See 20 CFR §655.731(c)(11).

Summary: In general, when an employer employing foreign nationals decides to make deductions from such an employee’s salary, the employer must be sure that doing so would not push the employee’s actual wages below the prevailing wage required by the labor certification. Exceptions are made for “authorized” deductions that are required by law and/or that are also made against the wages of U.S. workers similarly employed.

The United States Citizenship and Immigration Services announced this afternoon that the quota for cap subject H-1B visas has officially been reached for the Fiscal Year 2012. USCIS will reject all cap-subject petitions for new H-1B specialty occupations workers with start dates in Fiscal Year 2012. Read more at: FY 2012 H-1B Cap Reached.

The employment based visa classification EB-5, or “employment creation,” is so labeled because it is reserved for immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise. Visas of this category are to be issued to immigrants actively investing in an enterprise which will benefit the U.S. economy by creating at least 10 full time jobs for U.S. citizens and/or other workers authorized to be employed in the U.S. (excluding nonimmigrants). See INA §203(b)(5). The investment, in theory, helps to create jobs for United States Citizens, permanent residents, and other immigrant aliens. The amount of money that the immigrant investor must invest is dependent upon the area in which the business is, or will be located.

The type of business in which the petitioner must invest is not restricted beyond the qualification that it must be a “commercial enterprise.” The term commercial enterprise refers to any “for-profit activity,” not including “non-commercial activity such as owning and operating a personal residence.” See Matter of Izummi (interim decision). “The required amount of capital must be placed at risk ‘for the purpose of generating a return on the capital placed at risk.’” In a survey conducted by the Government Accountability Office (GAO), the nature of businesses established span a wide range including hotels, manufacturing companies, restaurants, sales, real estate, farms, technological services groups, and many others.

The term capital refers to any “cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable.” See 8 CFR §204.6(e). Under normal circumstances, the amount of the investment required to qualify as an immigrant investor under this visa classification is $1,000,000. The Code of Federal Regulations, however, distinguishes a set of “target employment areas” in which the required capital is reduced to $500,000. See 8 CFR §204.6(f). A target employment area is defined as “an area, which at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.” See 8 CFR §204.6(e).

Summary: In order to qualify for the EB-5 immigrant visa classification, the petitioner must show that (s)he has the required funds to actively invest in an enterprise that will create no less than 10 full time jobs for U.S. citizens or other qualified workers. Not only must the petitioner provide sufficient funds—acquired lawfully—but the petitioner must also take an active role in the enterprise in which (s)he invests.

The StartUp Visa Act of 2011 is a proposed amendment to the Immigration and Nationality Act (INA) that would create a new employment based visa category. The EB-6, Sponsored Entrepreneur, visa classification is intended to open a path to permanent resident status for immigrants with innovative business plans who do not have sufficient funds to qualify under the EB-5 classification. Much like the EB-5 classification it is modeled after, the EB-6 classification is intended to help spur the economy by increasing job opportunities for United States Citizens and other authorized workers, and increasing revenue in U.S. markets. The StartUp Visa Act of 2011 would not create new visas, but would split the existing number of visas allocated to the EB-5 visa category.

The Act would amend section 203(b) of the Immigration and Nationality Act to add the classification of sponsored entrepreneur to the list of immigrant visas allocated in the section. Immigrants may qualify for the EB-6 visa classification in one of the following three ways: [1] An applicant may prove that his or her business model has received an investment from a qualified venture capitalist, super angel investor, or qualified government entity of no less than $100,000; [2] An applicant may be someone in possession of an H-1B visa; or graduate level degree in science, technology, engineering, math, (STEM), computer science, or other relevant academic concentration, earned from an accredited United States college, university, or other institution of higher learning; or [3] An applicant may be a person who has a controlling interest in a foreign company. For more information on the qualification requirements please see StartUp Visa Act of 2011 §(2)(a)(2)(6)(A).

After meeting the primary qualifications listed above, the applicant is issued a two year conditional resident status. Within this time the applicant must meet the secondary qualifications involving increased capital or revenue, and/or job creation. If the applicant fails to meet such qualifications within his or her two year conditional residence, the Secretary of Homeland Security is to terminate his or her status no later than three years after the date conditional residence was conferred. Id. at §(2)(b)(3).

Summary: If passed, the StartUp Visa Act of 2011 would create an opportunity for immigrant entrepreneurs to bring their innovative business plans to the United States. It would add to the number of immigrant visas issued every year, but would draw from the number of visas already allocated to the EB-5 visa classification. In recent years, only half of the yearly allotment of visas in the EB-5 category has been issued. In theory, the implementation of the Act would help stimulate the U.S. economy by attracting a greater number of talented entrepreneurs who may not have qualified for immigrant visas before due to financial limitations.

PERM, or the Program Electronic Review Management System, is the process through which employers looking to hire foreign nationals to work in the United States on a permanent basis may gain approval. An employer, for the sake of this process is defined as a person, firm, association, or corporation with an opportunity for full-time employment at a location within the United States, and in the possession of a valid Federal Employment Identification Number (FEIN). See 20 CFR §656.3. Before the employer can petition to bring the immigrant worker to the United States, (s)he must apply for labor certification from the Department of Labor (DOL). If approved, the Secretary of Labor then certifies there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of application to fill the position, and that the employment of an immigrant worker would not adversely affect the wages of U.S. workers similarly employed. See 8 U.S.C. 1182(a)(5)(A).

The PERM approval process is slightly different from the approval process for temporary workers. The Application for Permanent Employment, ETA 9089, requires that the employer already have received a prevailing wage determination (PWD) from the DOL for the job opportunity in question. Included on the employer’s ETA 9089 should be information received from the National Prevailing Wage Center (NPWC) when the PWD was made, including: the prevailing wage tracking number; the Standard Occupational Classification (SOC) code for the occupation listed on the PWD request; the occupational title associated with the SOC assigned by the NPWC; the skill level of the job as determined by the NPWC; the prevailing wage rate as determined by the NPWC; the source of the determination (e.g. Collective Bargaining Agreement, survey, etc.); and the dates of the prevailing wage’s issuance and expiration. See www.foreignlaborcert.doleta.gov for more information.

Summary: PERM, or the Program Electronic Review Management System, is the process through which employers looking to hire foreign nationals to work in the United States on a permanent basis may gain approval. PERM applicants must file form ETA 9089 with the Department of Labor.