Tag Archives: filing

Some “DEFERRED ACTION” Pointers

1. In a change from the prior announcement, people currently in removal proceedings will use the USCIS process when it is implemented on August 15, 2012, rather than go through ICE. Only individuals in detention will go through ICE to make a deferred action request.

2. Information provided as part of the deferred action request process is protected from disclosure

to ICE or CBP for purposes of removal proceedings unless the requestor meets the criteria of USCIS’ November 2011 NTA memo.

3. If a departure from the U.S. was due to removal, voluntary departure, etc., the absence was not brief, casual and innocent and would interupt the continuous residence that is required since June 15, 2007. Short absences before August 15, 2012, reasonably calculated to accomplish the purpose of the trip, would not be interuptive.

4. Only people who are currently not in status and were not in any lawful status on June 15, 2012 are eligible.

5. A “significant misdemeanor” is one for which the individual was sentenced to more than 90 days, or a conviction for domestic violence, sexual abuse, burglary, firearm violation, drug distribution or trafficking (but not possession), or DUI, regardless of the sentence.

6. Minor traffic offenses, such as driving without a license, are not considered misdemeanors that count toward the “3 or more” standard.

7. The Form I-765 will be required, along with another form that will be made available on August 14 or 15. Total fees, including biometics, will be $465. Fee waivers will not be available, but fee exemptions will be permitted in very limited circumstances, and must be requested and approved before submitting a deferred action application without a fee.

8. Whether a person has reached age 15, and whether the requestor meets the education requirements, will be determined as of the date the request for deferred action is filed, NOT the June 15, 2012 date.

Visa Delay due to PIMS??? What is PIMS anyway?

Back in November 2007, the U.S. State Department (which governs all U.S. Consulates overseas, and issues U.S. visas), rolled out the “PIMS”-system. (Petition Information Management Service)

The purpose of this system was to manage information regarding petitions filed with USCIS, including scanning, archiving and data retrieval by consular officers, when adjudicating visa applications, based on previously filed USCIS-petitions.

Developed as a more secure form of verification, PIMS enhances fraud detection since the paper USCIS approval notices supplied by visa applicants were subject to fabrication and alteration. Data is entered into PIMS primarily by the State Department’s Kentucky Consular Center (KCC), which is primarily staffed though a contractor, Serco, Inc. A single performance based contract with Serco, Inc. covers both the KCC and the National Visa Center.

The results of other checks, such as fraud, criminal background, and immigration history and status (including SEVIS), may also be included in the PIMS report. A post must confirm a petition approval in PIMS before issuing a visa based on that approval.

It is NOT possible for a petitioner or beneficiary to send a petition directly to KCC for entry into PIMS, as this would circumvent the official inter-agency verification process. The petition copy for PIMS must be first sent to the USCIS Service Center which approved the petition for forwarding to the KCC.

Additionally, KCC cannot be contacted directly to verify the existence of a positive approval record before an interview.

Consular officers, during their review,  must check the Consolidated Consular Database (CCD), to verify the petition’s status in PIMS.  If the consular officer at that time cannot confirm the appropriate petition information in PIMS, the officer must contact KCC by email. At that time, KCC will research to determine if a copy has been received at their location. If not, KCC will then research the approval in USCIS’s CLAIMS3 electronic case system, and if able to confirm approval, the KCC will make the details available through the CCD.

If the approval information is in USCIS’ database, CLAIMS3, the approval information should be inserted into the CCD within 2 working days.

Previously, when the information in CLAIMS3 was incomplete, KCC would contact USCIS and request that the missing information be updated.  Now the procedure has changed because USCIS would take too long to act on behalf of KCC.   Now as long as CLAIMS3 verified approval, the KCC needs no longer wait for USCIS to update CLAIMS3 with additional details and would upload any information from CLAIMS3 into PIMS for use by posts.

Given that the PIMS record may now include incomplete information from CLAIMS3 and no copy of the petition, it is best practice for applicants to attend their visa interviews with the original petition approval notice and a full copy of the petition.  It is the responsibility of consular posts to continue to check the CCD system to determine if the PIMS record has been inserted/updated. Therefore, it is best practice for immigration attorneys to continue to follow up with consular posts to ensure that the consular officers are continually checking the CCD for updates.

USCIS Publishes Update on FY2010 H-1B Cap Numbers

USCIS just announced that it has received approximately 42,000 H-1B petitions counting toward the 65,000 cap.  The agency continues to accept petitions subject to the general cap.

Additionally, USCIS has received approximately 20,000 petitions for aliens with U.S.-earned advanced degrees; however, USCIS will continue accepting advanced degree petitions.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7.  For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.  USCIS will provide regular updates as the processing of FY 2010 H-1B petitions continue.

Some Thoughts on This Year’s H-1B Quota

It is not yet fully known how the current state of the U.S. economy will impact this year’s run on the cap-subject H-1B filings for Fiscal Year 2010, beginning on April 1.    It’s probably safe to assume that the woes befalling certain sectors of our nation’s economy have significantly hampered or even frozen U.S. employers’ usual H-1B hiring and petitioning habits.  Just to name a very select few:  engineering, construction, real estate, banking and finance, manufacture, etc.

In my mind there is no question that the number of petitions filed for this year’s quota of H-1B’s might be significantly down. The economic down-turn is not only impacting small and medium size businesses. Many of the larger corporations are suffering tremendously, consistent with general economic conditions.

Perhaps not so surprisingly, many of the smaller H-1B dependent companies, who rely heavily on foreign personnel for their staffing needs, are also significantly down.

Given the current status quo, I believe the quota will not be reached in the initial days of April, at the rate we have become accustomed to in years past, where quotas were met within a day or two.  Instead, I believe the quota for workers holding Bachelor Degrees may be reached by late-April, and the quota for workers holding U.S.-earned Master’s Degrees maybe even as late as some time in May.    But these are my ‘educated guesstimates’.  How it actually pans out remains to be seen.

Guidance on Fee Waivers for USCIS filing fees

Applicants and petitioners for immigration and naturalization benefits may request a waiver of the required filing fee when they show that they are “unable to pay.”

In determining inability to pay, USCIS officers consider the totality of all factors, circumstances, and evidence the applicant supplies including age, disability, household income, and qualification within the past 180 days for a federal means tested benefit, as well as other factors associated with each specific case.

The following types of applications/petitions are elible for fee waivers:

• Biometrics;
• Form I-90;
• Form I-485 (only in certain cases);
• Form I-751;
• Form I-765;
• Form I-817;
• Form N-300;
• Form N-336;
• Form N-400;
• Form N-470;
• Form N-565;
• Form N-600;
• Form N-600K; and
• Form I-290B and motions relating to the specified forms in 8 CFR 103.7(c).

U.S. Citizens and Resident Aliens Abroad – Filing Requirements

If you are a U.S. citizen or resident alien living or traveling outside the United States, you generally are required to file income tax returns, estate tax returns, and gift tax returns and pay estimated tax in the same way as those residing in the United States.

Your income, filing status, and age generally determine whether you must file a return. Generally, you must file a return if your gross income from worldwide sources is at least the amount shown for your filing status in the Filing Requirements table in Chapter 1 of Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad.

Business Plans, Financial Projections and Tax Filings…

USCIS and the State Department, as part of their adjudcations process, are examining financial records of U.S. businesses under control or ownership of foreign citizens. While this in itself is nothing new, the thoroughness and level of scrutiny with which these records are examined is unprecedented.

I cannot encourage any past, present and future client of mine strongly enough, to seek the advice and cooperation of experienced business advisors and CPA’s (Certified Public Accountants). While there are many skilled and knowledgeable advisors available, many of them do not frequently encounter or handle international clients, or fully understand international implications. Therefore seek out the help of advisors and CPA’s who specifically focus a large part of their practice on international and immigration-related financial and tax advice.

Whether you are preparing to apply for an immigration benefit (like a visa) based on a U.S. business activity, or whether you are already in the process of running your business, maintaining proper financial recordsis crucial, not only for good business sense, but also as part of your documentary evidence for the U.S. authorities.

Please keep in mind that while a business owner wants to minimize tax liability by showing little profit, the U.S. immigration authorities frequently neglect to recognize this and equate low profits with business failure. Many adjudicating officers have little or no formal business or economics training, and many concepts of legal tax avoidance are not understood or otherwise taken into consideration when examining the financial state of being of the company.

As a foreign business owner, you must strike a balance between tax avoidance (supressing profits on paper), and showing stronger, higher numbers in order to satisfy Immigration. Work with your business and tax advisors on appropriate strategies and prepare additional documentation in layman’s terms that supplement your tax filings and other financial records, to give adjudicating officers a more accurate picture of your company’s financial state of health.