Thursday, January 29, 2015

The Alternatives to the Elusive H-1B

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

March Madness is just around the corner. For business immigration attorneys, March Madness does not include the Sweet Sixteen or Final Four, but the furious month dedicated to preparing and assembling cap-subject H-1B petitions for the inevitable lottery on April 1st. Since 2013, employers have submitted petitions on April 1st that total almost twice the number of available H-1B visas, which has resulted in a lottery. No longer is an early-bird employer guaranteed consideration for one of the 65,000 visas available annually or the 20,000 exceptions for beneficiaries who earned an Advanced Degree in the United States. Petitions received April 1st could be “on the bubble” for one to two months while an employer holds his breath hoping for a “receipt” and not a rejected petition. So what is an employer supposed to do when an H-1B is harder to obtain than court-side tickets at the Championship Game? Well, it depends.

An entrepreneurial beneficiary could consider an E-1 Treaty Trader or E-2 Treaty Investor. If the majority of the owners of the potential employer are foreign nationals of countries that have trade and/or investor treaties with the United States, then the beneficiary could qualify as an Essential Worker or Manager/Executive on an E-1 or E-2 visa. The beneficiary could also consider investing and managing her own company in the United States on an E visa as a principal treaty trader or investor. As a bona fide enterprise, the beneficiary could offer services or products to the potential employer as well as other potential clientele.

Is the US Entity affiliated with a foreign entity? If so, an L-1 visa could be an option. If the US Entity has been established and maintained a relationship with the foreign entity for one year or more than the beneficiary could be eligible for an individual L-1. Depending on the beneficiary’s proffered position, then the employer could petition for either an L-1A Managerial/Executive Capacity or L-1B Specialized Knowledge. Although, one bit of caution, the L-1B may be even more difficult than winning the H-1B lottery to obtain due to the present political climate surrounding the meaning of “specialized knowledge.” If a US entity does not exist, but the beneficiary has worked for a foreign entity for one year or more in the last three years and the foreign entity has an interest in establishing a US affiliate office, then the beneficiary could qualify for an L-1A or L-1B New Office status.

On occasion the beneficiary may be recognized as one of the best individuals in her field of endeavor. The beneficiary does not have to be a Nobel Peace Prize winner or recipient of an Academy Award, but if the beneficiary has been recognized nationally or internationally for her work in her field of occupation, she may qualify for O-1 Status as an Alien of Extraordinary Ability.

Is the beneficiary looking for on-the-job training? Is the employer a primary or secondary education school that is offering a temporary teaching position? Then the beneficiary could qualify for a J-1 Exchange Visitor Status as a trainee or teacher. The J-1 Exchange Visitor program is heavily regulated and restricted. Employers cannot assign productive work to trainees and trainees must intend to return to their home country to share their new skill within the foreign labor market. Teachers may also qualify to teach in a primary or secondary school in the United States in J-1 status, assuming the teacher is proficient in English, has at least three years of experience and the foreign equivalent of a teaching license.

Is the proffered job recognized as a seasonal, peakload, or one-time need for the Employer? Then an H-2B non-agricultural visa may apply. An H-2B worker could work up to ten months in a position recognized as seasonal or peakload annually. An example of one-time need would include workers needed to clean up a community or administer aid to habitants after a natural disaster. One-time need could be extended to an employer’s need to hire a foreign national to train US Workers in a skill set not found in the United States, assuming the foreign national herself will not engage in productive work.

Is the beneficiary from Canada, eh? Or Mexico? The proffered position may qualify under one of the categories of TN Visa defined pursuant to the North American Free Trade Agreement (NAFTA) as a shortage occupation.


What about a “Green Card”? An employer may sponsor a beneficiary for permanent residence at anytime during the hiring or employment process. A beneficiary need not be working for the sponsoring employer or even in the United States when the employer begins the process. Depending on the qualifications of the beneficiary or requirements for the position, the process may include two or three steps and a beneficiary could obtain her permanent residence in as little as four-six months. Yes – that is right – a beneficiary could obtain a green card through employment faster than he could obtain an H-1B visa. How’s that for a Cinderella Story?

Wednesday, January 28, 2015

Changes to DMV Processing of Driver’s Licenses for Immigrants

Contributed by Jennaweh Hondrogiannis, Associate Attorney

With the passing of SB251 last year, the Division of Motor Vehicles began issuing Colorado driver’s licenses to qualifying undocumented immigrants. Since the program began, there have been five locations equipped to process applications for these types of driver’s licenses in Colorado. However, due to recent budget restraints, the DMV will only have one office capable of processing these applications. Last week, the Joint Budget Committee twice voted against the DMV’s use of funds from the program’s fees to maintain the five locations processing these types of applications. Thus, the only location where SB251 driver’s licenses can be processed is the Denver Central Office. While there were long wait lists prior to the Joint Budget Committee’s vote, the wait period is expected to increase by years for this appointment-only program. The DMV now has 31 appointments available per day whereas before the vote, there were 155 appointments. 


If you have any questions about the recent changes to this program or your eligibility for a driver’s license under this program, call to speak to one of our experienced immigration attorneys at 303-297-9171.

Monday, January 26, 2015

The DAPA Groundhog Will See His Shadow

Contributed by Kim Tremblay, Associate Attorney
February is the month we celebrate Valentine’s Day, President’s Day, the Chinese New Year, and some lesser known days (Don’t Cry Over Spilled Milk Day and Blame Someone Else Day, just to name a few).  Some also celebrate Groundhog’s Day on February 2nd, the mid-point of winter.  Coincidentally, February is also the mid-point between the President’s November 20, 2014 announcement on Deferred Action for Parental Accountability (DAPA) and the actual projected May beginning of the program.   

Legend goes that if the groundhog sees his shadow upon emerging from the ground on February  2nd, there will be six more weeks of winter.  If he does not, spring should be right around the corner.  More details about DAPA were supposed to come out in January, but none have emerged thus far; today, government representatives holding a stakeholder conference call regarding the program did not announce a date for the guidance.  They only mentioned that guidance would be available before the program starts.  It looks like potential DAPA applicants and their representatives are going to have to suffer through the cold a little while longer. 


Potential DACA applicants can watch out for emerging details about the program at USCIS.gov and can still prepare themselves by consulting an attorney or accredited representative to determine whether they appear to meet the basic requirements announced in November.  

Friday, January 16, 2015

Mexican Consulate Will Begin Issuing Copies of Birth Certificates Registered in Mexico



Contributed by Aaron Hall, Partner

Mexico has announced that beginning on January 15, 2015, Mexican consulates in the United States will issue certified copies of birth certificates registered in Mexico.  This new service will be a great convenience for Mexicans in Denver needing a copy of the birth certificate (for immigration-related applications or for any other reason).

In order to request a certified copy of a birth certificate, proof of identity must be presented at the consulate.  Also, the consulate requests the Clave Única de Registro de Población (CURP) if the person has one.  The fee for each certified copy will be $13.

Those interested in obtaining a certified copy of their birth certificate can get more information at the toll free number Centro de Información y Asistencia a Mexicanos (CIAM): 1-855-463-6395.

The Mexican Consulate in Denver is located at 5350 Leetsdale Drive #100, Denver, CO 80246.

Thursday, January 8, 2015

United States Citizenship & Immigration Service Extends Temporary Protected Status to El Salvador

Contributed by Melanie Corrin, Partner


On January 7, 2015 the Department of Homeland Security (DHS) extended Temporary Protected Status (TPS) to El Salvadorans who qualified and applied during the designated time and who received TPS from the government.  This move is a welcome and much needed recognition of the tens of thousands of human beings present in the United States who remain in need of protection from return to El Salvador.  The extension is valid until September 6, 2016.

Please contact us if you are eligible for renewal of your Temporary Protected Status.


Tuesday, January 6, 2015

DHS Announces Redesignation of Syria for Temporary Protected Status

Contributed by Aaron Hall, Partner

Realizing that the ongoing armed conflict in Syria continues to prevent Syrian nationals from safely returning, Secretary of the Department of Homeland Security (DHS) Jeh Johnson has redesignated Syria for Temporary Protected Status (TPS) and extended the existing TPS designation for the country from April 1, 2015, through Sept. 30, 2016. This allows eligible nationals of Syria (or persons without nationality who last habitually resided in Syria) to register or re-register for TPS in accordance with the notice published today in the Federal Register.

Current Syrian TPS beneficiaries seeking to extend their TPS status must re-register during a 60-day period that runs from Jan. 5, 2015, through March 6, 2015. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day period begins. USCIS will not accept applications before Jan. 5, 2015.
USCIS is automatically extending current TPS Syria EADs with a March 31, 2015, expiration date for an additional six months. These existing EADs are now valid through Sept. 30, 2015.
Those seeking to apply for the first time may be eligible if they have continuously resided in the U.S. since January 5, 2015 and have been physically present in the U.S. since April 1, 2015.