Immigration Q and A December 2010

Immigration Q & A

Immigration Q and A December 2010

I have had my green card for seven years, but travel frequently on business. Can I apply for my citizenship?
The citizenship requirement you ask about is the physical presence requirement. The simplest way to see if you fall under this rule is to add all the days that you have been outside the United States (in the last five years). If the number is greater than 912 days (half of the five years), you do not qualify for citizenship. If the number is less than 912, you must see if you have any trips abroad that were longer than one year. If so, you can only file four years after you returned from that trip. If any trip was greater than six months, but less than one year, you may have to provided evidence that you did not abandon your residence in the United States. This includes tax returns, proof of payment of rent or mortgage, bills or other evidence that you maintained residence here.

What is the best way to bring a specialist worker to my business?
That depends on the nature of your business and the type of employees. If your business requires professionals (someone with a bachelor’s degree or equivalent in the field of employment), you may use the H1-B visa to bring such employees. If your business has a subsidiary, parent company or affiliate abroad, you may be able to bring those workers in on an L1 visa. There are also other visa types for very specific employment. For example, persons of extraordinary abilities in the arts, sports or sciences may qualify for the O visa, athletes and performers may use the P visa and culturally unique exchange workers may use the Q visa. You should make a list of the exact requirements you have for your employee and the exact job duties, and the consult an immigration attorney to find the best fit of visa for that worker.

Are immigration filing fees going up again?
Yes. USCIS has proposed a fee increase for most filing fees. The increase went into effect on November 23, 2010. The fee for naturalization will not go up (except the fingerprint component of the fee will increase by $5). The fee for a family petition will increase from $355 to $420. An application for adjustment of status will cost $1070 (currently it is $1010). Most other filing fees will increase by about 10%. A notable exception is the filing fees for a fiancé visa, which will actually decrease from $455 to $340.

Are there still H1-Bs left for the 2010 quota?
On November 12, 2010 USCIS announced that it has received approximately 47,800 H-1B petitions counting toward the Congressionally-mandated 65,000 cap for the fiscal year 2011. The agency continues to accept petitions subject to the 65,000 general cap for the fiscal year 2011. Additionally, USCIS has received approximately 17,400 petitions for aliens with advanced degrees (known as the Master’s Cap). Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas. This means that there are still a number of new H1-B’s available for fiscal year 2011. The fiscal year 2011 begins October 1, 2010 and the fist day of filing for petitions for 2011 was April 1, 2010. Of course some H1-B petitions are not subject to the cap and are available year round, such as petitions filed by Institution of Higher Education or non-profit research organizations.

Q. Why are legal immigrants worried about the Arizona law?
The law allows police to stop people based on a “reasonable suspicion” that the person may not have proper immigration documents. The law does not explain what is a “reasonable suspicion,” and many immigrants and US citizens fear that police will use race or physical appearance as a basis to stop people.

Q: Arizona supporters of the law say it just mirrors federal law—what’s wrong with states copying federal law?
The Arizona law goes well beyond federal law, copying the words of certain immigration statutes, but imposing new and often more severe penalties than the federal law.  Most federal immigration violations are civil, not criminal. The Arizona law makes these violations criminal. This creates difficult and complex jurisdictional issues, as the federal government has been given the exclusive power to regulate immigration law, especially civil immigration law.  Thus, even if Arizona law enforcement arrests every undocumented person in the state, it is still up to the federal government to ultimately charge them, put them in immigration proceedings, and if necessary, deport them.  The Department of Justice has filed a lawsuit to prevent this law from going into effect.

Q: Are other states considering Arizona-like laws?
Yes.  Legislators in at least twenty-two states—Arkansas, Colorado, Delaware, Georgia, Idaho, Indiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah—have introduced or are considering introducing similar laws. Nine states have filed briefs supporting Arizona in the federal government lawsuit against it: Michigan, Alabama, Florida, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas and Virginia.

Some politicians who initially opposed the law have changed their positions to support it, such as Florida Attorney General Bill McCollum, who is running for governor in Florida. Another gubernatorial candidate, Rick Scott, has spent $4.7 million dollars for television campaign ads featuring his support of the Arizona law. Politicians supporting similar laws are finding support among voters who want to blame immigrants for the tough economy.