• U.S. Tax Guide for Aliens (Publication 519)
• Tax Guide for U.S. Citizens and Resident Aliens Abroad (Publication 54)
• Tax Information for Visitors to the United States (Publication 513)
• Withholding of Tax on Nonresident Aliens and Foreign Entities (Publication 515)

Lawful permanent residents should pay extra attention to their federal income tax returns.  Filing as a “non-resident” will jeopardize your status and have a severe impact on your ability to apply for naturalization.

Individual federal income tax returns are a critical component of family-based green card applications and naturalization applications.  If you have questions about qualifying for either of these benefits, schedule a consultation with Immigration Attorney D.Ray Mantle today.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption.

During the first week of filing this year, USCIS received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers and computer programmers, among others.

Employers still hoping to hire H-1B workers should contact an immigration attorney to assist in filing their petitions before USCIS stops accepting new filings. Visit www.dmantle.com to learn more.

U.S. employers also turn to H-1B professionals when they recruit post-graduates from U.S. universities. Foreign students represent half of all U.S. graduate enrollments in engineering, math, and computer science. It is imperative that U.S. businesses have access to foreign professionals who have graduated from U.S. master’s and Ph.D. programs. The H-1B visa is a vital tool necessary to help in the recovery of the U.S. economy and to keep jobs in America. Far from harming U.S. workers and the U.S. economy, highly educated foreign professionals benefit our country by allowing U.S. employers to develop new products, undertake groundbreaking research, implement new projects, expand operations, create additional new jobs, and compete in the global marketplace.

H-1B workers do not undercut wages of U.S. workers. When an employer submits a petition for an H-1B worker, there are safeguards to help prevent highly educated foreign professionals from undercutting the wages offered to U.S. workers. The employer must offer the foreign professional a wage that is the higher of either the typical wage in the region for that type of work (“prevailing wage”), or what the employer actually pays existing employees with similar experience and duties. Furthermore, there are other safeguards that the employer must meet including indicating that: the foreign professional will not adversely affect the working conditions of U.S. colleagues, there is no strike or lockout at the worksite and the position requires a professional in a specialty occupation and the intended employee has the required qualifications.

To learn more about sponsoring an H-1B worker, schedule a consultation with Immigration Attorney D.Ray Mantle today.

Foreign nationals stay busy tracking numerous expiration dates related to their ability to live and work in the United States.  Consider the burden of ensuring passports are kept current, that foreign travel is completed before the visa issued by a consular post expires, and that they never stay beyond the authorized date on the I-94 card.  But what happens when a petition to extend status is filed before the I-94 expiration date?

Period of Stay Authorized by the Attorney General

A timely-filed extension application allows the beneficiary to remain in the United States until a final decision is made on the application.  This time period is recognized as “a period of stay authorized by the Attorney General,” and does not count as unlawful presence when considering the 3 and 10 year bars to readmission.  If the extension application is ultimately approved, then the entire period is counted as being in lawful immigration status.  If the application is denied, however, the time it took USCIS to make a decision on the application after the I-94 expiration date does NOT count as lawful immigration status.

Automatic Extension of Employment Authorization

A timely-filed extension application for an employment-based category (A-3, E-1, E-2, E-3, G-5, H-1, H-2, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN) automatically extends employment authorization with the same employer for up to 240 days after the I-94 expiration date. (8 C.F.R. § 274a.12(b)(20)).  The automatic employment authorization ends earlier if USCIS makes a decision on the application, either granting a new period of authorization, or denying the extension application.

When USCIS takes an extraordinarily long time to issue a decision on the extension application, it may be necessary to file another extension application before the 240 days have passed.

Lawful Immigration Status

“Lawful immigration status” is granted to foreign nationals “whose initial period of admission has not expired or whose nonimmigrant status has been extended.”  8 C.F.R. § 245.1(d)(1)(ii).  For most applicants, the legal distinction between “lawful immigration status” and “period of stay authorized by the Attorney General” or the 240-day automatic extension, will have no impact on their long-term immigration goals, so long as the extension applications are ultimately approved.  But keep in mind that these three legal principles are not the same.

The Fifth Circuit ruled yesterday in Bokhari v. Holder, No. 09-60538 (5th Cir. Sep. 29, 2010), that the automatic employment authorization that comes with a timely-filed extension application does not provide “lawful immigration status.” The court’s ruling reaffirmed a 1976 decision from the Board of Immigration Appeals that “a grant of an extension request confers lawful status, not the filing of the request.” (citing In re Teberen, 15 I&N Dec. 689, 690 (BIA 1976)).

Applications for adjustment of status (green card) based on employment-based petitions will be denied if the foreign worker was in “unlawful immigration status” at the time of filing, or had failed to maintain continuously a lawful status since last entering the United States, but only if the aggregate period without lawful status exceeded 180 days.  In other words, a green card applicant who is awaiting approval on an H-1B extension application, for example, is authorized to work and stay in the U.S. while the extension application is pending, but is not maintaining “lawful immigration status” until the extension is retroactively approved.

To learn more about maintaining lawful immigration status for yourself or your employees, contact Immigration Attorney D.Ray Mantle today.

The Immigration and Nationality Act provides a yearly minimum of 140,000 employment-based immigrant visas which are divided into five preference categories. They may require a labor certification from the U.S. Department of Labor (DOL), and the filing of a petition with United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS).

EMPLOYMENT FIRST PREFERENCE (EB1)

Priority Workers receive 28.6 percent of the yearly worldwide limit. All Priority Workers must be the beneficiaries of an approved Form I-140, Immigrant Petition for Foreign Worker, filed with USCIS. Within this preference there are three sub-groups:

1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the USCIS, rather than through an employer;

2. Experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS; and

3. Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS.

EMPLOYMENT SECOND PREFERENCE (E2)

Professionals Holding Advanced Degrees or Persons of Exceptional Ability in the Arts, Sciences, or Business receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First Preference visas. All Second Preference applicants must have a labor certification approved by the DOL, or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest.

EMPLOYMENT THIRD PREFERENCE (EB3)

Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers receive 28.6 percent of the yearly worldwide limit, plus any unused Employment First and Second Preference visas. All Third Preference applicants require an approved I-140 petition filed by the prospective employer. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program.

EMPLOYMENT FOURTH PREFERENCE (EB4)

Special Immigrants receive 7.1 percent of the yearly worldwide limit. All such applicants must be the beneficiary of an approved I-360, Petition for Special Immigrant, except overseas employees of the U.S. Government who must use Form DS-1884. Certain spouses and children may accompany or follow-to-join the principal special immigrant.

EMPLOYMENT FIFTH PREFERENCE (EB5)

Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur with USCIS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.

Help with Employment-Based Immigration

Immigration Attorney D.Ray Mantle assists employers and employees in obtaining positive immigration results in a timely, personal, and professional manner.

If you would like to understand more about employment-based immigration and to find out if you qualify for a work visa, please contact D.Ray Mantle for a consultation.

As a worldwide church dealing with many complex issues across the globe, The Church of Jesus Christ of Latter-day Saints promotes broad, foundational principles that have worldwide application. The Church regards the declaration of the Utah Compact as a responsible approach to the urgent challenge of immigration reform.  It is consistent with important principles for which we stand:

• We follow Jesus Christ by loving our neighbors.  The Savior taught that the meaning of “neighbor” includes all of God’s children, in all places, at all times.
• We recognize an ever-present need to strengthen families.   Families are meant to be together.  Forced separation of working parents from their children weakens families and damages society.
• We acknowledge that every nation has the right to enforce its laws and secure its borders.  All persons subject to a nation’s laws are accountable for their acts in relation to them.

Public officials should create and administer laws that reflect the best of our aspirations as a just and caring society.   Such laws will properly balance love for neighbors, family cohesion, and the observance of just and enforceable laws.

The call to love our neighbors extends beyond cultural and political borders.  Before throwing accusations of law-breaking, consider the Savior’s example when a woman was brought before Him, accused of breaking a law punishable by stoning: “He that is without sin among you, let him first cast a stone at her.” (John 8:7).  Are we guiltless enough to cast stones at the accused?  Or, can we find workable solutions in harmony with the Lord’s example: “Neither do I condemn thee: go, and sin no more.” (John 8:11).

FEDERAL SOLUTIONS Immigration is a federal policy issues between the U.S. government and other countries – not Utah and other countries.  We urge Utah’s congressional delegation to lead efforts to strengthen federal laws and protect our national borders.  We urge state leaders to adopt reasonable policies addressing immigrants in Utah.

LAW ENFORCEMENT We respect the rule of law and support law enforcement’s professional judgment and discretion.  Limited local police resources should focus on criminal activities, not civil violations of federal code.

FAMILIES Strong families are the foundation of successful communities.  We champion policies that support the health, education and well-being of all children and oppose policies that unnecessarily separate families.

ECONOMY Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity.  We acknowledge the economic role immigrants play as workers and taxpayers.  Utah’s immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.

A FREE SOCIETY Immigrants are integrated into communities across Utah.  We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion.  The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors.  Utah should always be a place that welcomes people of goodwill.

Substitute “Utah” with your own state or city, and you will immediately realize the direction we should take in solving our current immigration crisis.  Above all, we must be respectful of one another, and recognize that upholding the rule of law is not an excuse for vigilantism.