Australians and The E-3 Visa

The E-3 visa is available to Australians who have an offer of employment from a company in the United States that wishes to employ them.  The visa is similar in many ways to the H-1B visa in that the employment has to be for a specialty occupation. According to USCIS’s website, in order to be a specialty occupation, the job must meet one of the following criteria:

1)         A bachelor’s degree or higher or its equivalent is the minimum entry level requirement for the position;

2)         The degree required is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;

3)         The employer normally requires a degree or its equivalent for the position;

4)         The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher degree.

In order for the employee to accept the position, the beneficiary must meet one of the following requirements:

1)      Hold a U.S. Bachelor’s Degree or higher that is required for the position;

2)      Hold a foreign degree that is equivalent to a U.S. Bachelor’s Degree  required for the position;

3)      Hold an unrestricted state license, or certification that authorizes you to practice the specialty occupation and be engaged in the state of intended employment;

4)      Have education or training or progressively responsible experience in the specialty occupation that is the equivalent to the completion of such a degree.

The sponsoring company must also file an approved form ETA-9035, Labor Condition Certification (LCA, ) and Form I-129 "Petition for a non-Immigrant Worker" with USCIS. There are exceptions to this method of filing however. Under certain circumstances, a prospective employee currently working or living in the United State under a status other than E-3 may be able to accwpt employmnent under the E-3 visa. 

A petitioner employer may file an LCA for the prospective employee and upon approval request that the employee beneficiary apply for an E-3 visa on the Department of State's website and then follow up with the scheduling of an appointment for an interview at a consular post outside of the United States.  Depending upon the circumstances, this method may allow an employer to quickly hire a prospective employee, thus saving the time and expense often required to recruit and hire an employee who is qualified under this visa.  

Each circumstance is different so results will differ.   Contact an experienced attorney with any questions as the above is informational only and should not be construed a legal advice.   

Grand Larceny and Aggravated Felonies in New York State

A conviction for Grand Larceny can have dire consequences in the context of immigration because a conviction for Grand Larceny is often categorized as an Aggravated Felony.   The definition of an aggravated felony can be found in Section § 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).  Section 101(a)(43(G) defines an aggravated felony as a crime involving theft where a sentence of more than one year is imposed. Under Section 101(a)(43(M), crimes involving fraud or deceit in which the amount of loss to the victim is in excess of ten thousand dollars is also an aggravated felony. The two sections related to Larceny are 101(a)(43(G) and 101(a)(43)(M). A conviction under either one of these sections is an Aggravated Felony for immigration purposes.   

Article 155 of the New York Penal also defines the differing degrees of Larceny. In New York, larceny can be committed in a number of ways; some involve theft and others fraud. Therefore, when considering a plea of guilty to a larceny charge, the accused has to take into account many factors in determining whether or not a guilty plea will result in a conviction classified as an aggravated felony.


When considering your options as they relate to Larceny, speak to an experienced attorney regarding the potential consequences of a guilty plea.  The consequences can be severe.  

New York Larceny and Aggravated Felonies

Grand Larceny and Aggravated Felonies in New York State

A conviction for Grand Larceny can have dire consequences in the context of immigration because a conviction for Grand Larceny is often categorized as an Aggravated Felony.   The definition of an aggravated felony can be found in Section § 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).  Section 101(a)(43(G) defines an aggravated felony as a crime involving theft where a sentence of more than one year is imposed. Under Section 101(a)(43(M), crimes involving fraud or deceit in which the amount of loss to the victim is in excess of ten thousand dollars is also an aggravated felony. The two sections related to Larceny are 101(a)(43(G) and 101(a)(43)(M). A conviction under either one of these sections is an Aggravated Felony for immigration purposes.   

Article 155 of the New York Penal also defines the differing degrees of Larceny. In New York, larceny can be committed in a number of ways; some involve theft and others fraud. Therefore, when considering a plea of guilty to a larceny charge, the accused has to take into account many factors in determining whether or not a guilty plea will result in a conviction classified as an aggravated felony.


When considering your options as they relate to Larceny, speak to an experienced attorney regarding the potential consequences of a guilty plea.  The consequences can be severe.  

Proposed Immigration Reform Bill

The below is a link to the American Immigration Lawyers Association website.  It includes proposed legislation regarding immigration reform.  My initial reaction is that a number of people in the United States who are out of lawful status will be forced to wait aconsiderable amount of time before they are able to adjut to "Registered Provisional Immigrant Status."  The other consideration is the deadline.  The application period will be for one year after the requirements for securing the border are met.  It appears, however, that the proposed legislation does attempt to deal with the huge number of people who have been her many tears and have no criminal bars to their adjustment:

This below section comes into play after the border securitization are in place:

Legalization and Legal Immigration

 

I.          Adjustment of Status to Registered Provisional Immigrant Status

 

·         Individuals in unlawful status may apply to adjust their status to the legal status of Registered Provisional Immigrant Status.

 

·         Eligibility Criteria:

 

·         Residence in the United States prior to December 31, 2011 and maintenance of continuous physical presence since then.

 

·         Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all applicable fees required to pay for the cost of processing the application.

 

·         Ineligible if:

o   Convicted of an aggravated felony;

o   Convicted of a felony;

o   Convicted of 3 or more misdemeanors;

o   Convicted of an offense under foreign law;

o   Unlawfully Voted; and

o   Inadmissible for Criminal, National Security, Public Health, or other morality grounds.

 

·         Spouses and children of people in RPI status can be petitioned for as derivatives of the principal applicant (but must be in the United States at the time).

 

·         Immigrants in RPI status can work for any employer and travel outside of the United States

 

·         Individuals outside of the United States who were previously here before December 31, 2011 and were deported for non-criminal reasons can apply to re-enter the United States in RPI status if they are the spouse, of or parent of a child who is, United States citizen or lawful permanent resident; or are a childhood arrival who is eligible for the DREAM Act.

 

 

·         The Application period will be for 1 year with the possibility of extension by the Secretary for an additional 1 year.

 

·         Individuals with removal orders will be permitted to apply as will aliens currently in removal proceedings.

 

·         RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render the alien deportable.  Another $500 penalty fee is applicable at this time.

 

 

·         The Secretary may collect a processing fee from individuals who register for RPI status in an amount that is sufficient to recover all of the costs of implementing the registration program.

 

·         An individual who has been granted RPI status is not eligible for any Federal means-tested public benefit (as such term is defined in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)).

 

·         A noncitizen granted registered provisional immigrant status under this section shall be considered lawfully present in the United States for all purposes, while such noncitizen remains in such status, except that the noncitizen

o   is not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986; and

o   shall be subject to the rules applicable to individuals not lawfully present that are set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42

U.S.C. 18071).

 

·         After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green card (described below) if the following things have occurred:

o   The alien maintained continuous physical presence

o   They paid all taxes owed during the period that they are in status as an RPI

o   They worked in the United States regularly;

o    And demonstrated knowledge of Civics and English

o   All people currently waiting for family and employment green cards as of the date of enactment have had their priority date become current.

o   A $1,000 penalty fee is rendered

·         People in DREAM Act Status and the Agricultural Program can get their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.

The full text of the summary:
http://www.aila.org/content/default.aspx?docid=44052&utm_source=AILA+Mailing&utm_campaign=156b68f884-AILA8_4_16_13&utm_medium=email

Immigration Reform

The linked article discusses Senator Marco Rubio's view of the proposed immigration legislation he is helping draft.  I understand his claim that the proposed bill is not designed to be an amnesty and that it wants the wait times for adjustment to be long, but wonder, can the immigration process be any more difficult or time consuming than it already is? Wait times for family visas in some instances is twenty years and these are for applicants who are not currenlty in th eUnited States.  In addition,  isn't the very nature of what Rubio and his team are drafting a form of Amnesty?  In most instances, it seems that people who are here illegally do not want to leave.  Permitting them to pay fines and remain in the United States while they adjust status is, in my opinion, a form of Amnesty.  Nevertheless,  if the outcome of these negotitaions means that the problem of eleven million people currently not in lawful status is addressed in a manner that addresses the effects of this untenable situation,  Senator Rubio can call it what he likes.  It iwill be an improvement. 

http://www.huffingtonpost.com/2013/04/14/rubio-immigration-amnesty-_n_3080184.html

April 2013 Visa Bulletin

The Department of State recently published the Visa Bulletin for April 2013.  The link for the Department of State website is below. 

http://travel.state.gov/visa/bulletin/bulletin_5900.html

Get in Line

The below link comes from the American Immigration Council's Immigration Policy Center.  It addresses the argument that undocumented immigrants should "wait in line."  The "line" or "lines" that the article describes are either non-existent or so long that as to make immigration unlikely or impossible for many people. 

Practically speaking, eleven million people are not leaving the United States.  Border security is at an all time high and the number of people crossing illegally into the United States is at an all time low. The time seems is for comprehensive immigration reform that involves a path to citizenship for those who have been here for a long time, pay a fine and pay back taxes.  How we address the nation's need for immigrants and foreign workers is a topic for a follow-up blog. 


http://www.immigrationpolicy.org/just-facts/why-don%E2%80%99t-they-just-get-line