Immigration Debate

With so many different sources of information and the sometimes ambiguous rules associated with immigration to South Africa, spousal permits are often confused as to what they entitle the holder to be able to undertake in terms of work or business opportunities.

It is not uncommon for foreign spouses to end up with relatives permits and in extreme cases be advised that they require a work permit in order to take up paid employment. In fact many recruitment agencies and employers are also under the false believe that the normal protocol that applies to general work permit applicants also applies to foreign spouses.

The actual process is seemingly straight forward - if you are married to a South African you need to apply for spousal permit. Spousal permits, although the requirements seem easy, can be difficult to obtain. The only stipulated requirement (other than the general immigration rules) is that the applicant needs to be married to a South African citizen or permanent residency holder. There is no specified time frame to the marriage although it should be noted that recent marriages and younger ages can mean a shorter period of time being granted on the spousal permit.

Often the key to a successful home coming for the South African and their foreign spouse is the ability for them to be able to work and continue a career - it is in this regard things often go wrong.

In the first instance the foreign spouse need so ensure they are indeed applying for a spousal permit. Subsequent to this obtaining permission to work does not involve applying for a work permit but applying for an endorsement to the spousal permit.

This can be done in two ways:

1. To make a simultaneous application for a spousal permit and endorsement
2. To obtain the spousal permit and then subsequently apply for an endorsement.

Route 1 means less costs as the bulk of the application is already prepared whereas route 2 means submitting all supporting documentation a second time. The need for an endorsement is proven by the submission of a job offer and applicants can expect to wait 30 - 60 days for its issuance.

The endorsement is granted to that specific employer and any change in job means a new application must be submitted reflecting the need for a new endorsement attached to the new employer. It should be noted that until such endorsement is granted the applicant may not take up employment.

To counter a few myths and bad advice, the foreign spouses need not go through the burdens that a general work permit application means and nor need the prospective employer. This means the employer does not have to advertise the position nor prove that a South African was not available to do the job.

A further benefit is that SAQA (a South African qualifications check) does not need to be obtained - this saves considerable time.

Foreign spouses should be reassured that South African employers, in the main, value applicants with experience abroad and despite economic constraints there are plenty of opportunities for meaningful employment.

Congratulations on your engagement to be married! First comes love and then comes the visa to bring your loved one to the US. Many who are planning their marriage in the US to a US citizen, have important questions and concerns they would like addressed such as:

What do I need to do to prepare and consider for a successful outcome for our case?

• You must have personally met within the last 2 years and you must show substantial evidence of this. Save your boarding passes, hotel receipts, events, phone bills, emails, chats, cards, letters, photos and as much evidence as possible to demonstrate you have met, and are carrying on your relationship.
• The petitioner must be a US Citizen.
• Neither party can be married at the time of filing the K1 fiance visa case.
• You must have final divorce decrees signed by the judge or the court if you were married previously.
• Tentatively plan your wedding, shop for rings and get appraisals, look at wedding reception halls, talk to your church and get documentation of this. Find a wedding planner, etc., but DON’T set a concrete date for the wedding otherwise you will be depending on the government to process your case in time for the wedding ! That could pose as a problem if the visa doesn’t arrive on time! The best course of action is to tentatively plan on a wedding to take place within a year. You will need as much of this evidence as possible to demonstrate you are truly planning a wedding in the US.
• Be sure you can support your fiance in the US through the affidavit of support agreement you will sign. This is a document the US Citizen signs telling the government that your fiance will not become a ward of the state, i.e, your foreign national fiance cannot obtain US government assistance. Therefore, you must demonstrate you can support your fiance through work verification letters, tax returns, bank statements, assets etc. If you cannot demonstrate this you will need to find a joint sponsor to join your affidavit to demonstrate the support will be available if needed.
• Your fiance cannot wait in the US for the visa they must wait abroad in the country they reside in. It is highly suggested they do not come on a tourist visa or visa waiver to wait for the fiance visa and then return home. The US consulate abroad could deny the case if this takes place.
• If you, or your fiance has any arrest records or court convictions this could pose as a problem for a successful outcome on obtaining the K1 fiance visa. You should seek immigration counsel to determine whether your record will affect filing the case.
• The consulate will ask you a series of questions about your relationship and you must be prepared to discuss your relationship with the consulate. Always tell the truth. If you have overstayed on a visa in the US or have filed for any other visa previously and were denied or you have ever entered the US illegally, you must be prepared to discuss this with the consulate. You should seek immigration counsel to discuss these matters if any of these situations apply to you, before you file for any visa.

How does the process work?

There are three steps with this process and three government entities involved:

Step 1 Citizenship and Immigration Services

• A petition is signed by the US Citizen sponsor and is filed along with the correct evidence and supporting documentation, with the US Citizenship & Immigration Services (USCIS).
• The petition is approved and moves forward to the National Visa Center.

Step 2 The National Visa Center

• The approved fiance petition has been forwarded to the National Visa Center (NVC). The National Visa Center assigns the case a consular number and may begin preparation for the consular interview. This depends on the consulate.
• The case is forwarded to the consulate for a scheduled interview appointment.

Step 3 Consular Processing

• The applicant attends the interview with a well prepared updated file and new evidence submitted. The applicant knows the file and is prepared for the interview.
• The fiance visa holder has 6 months to enter the US and once in the US has 90 days to marry their US Citizen fiance. Your foreign national fiance should then begin to adjust their status for residency in the US after being married.

How long does the process take?

• The government wait times are generally 8 months but this depends on the regional center in the US where the petition will be filed and the consulate abroad. Each regional center and consulate have different wait times but generally the most you will wait is 8 months.

How much does it cost?

• The filing fees change periodically regarding the petition. You should check the USCIS website for current filing fees. As of January, 2009 the fiance filing fees are $455.00 The consulate fees will vary depending on the consulate, police clearances, medical exams and consular forms will need to be obtained and filed which all have fees. Generally, the fees are $300 to $500 at the consulate.

It is an important step to take when deciding to get married, and even more importantly to make sure your foreign national fiance can come to the US without any delays or denials. This article serves to give you some useful information but is not a guarantee for a 100% successful outcome. This should be a jubilant time when planning to be married! Be sure you plan accordingly for your wedding celebration and remember first comes love, then comes the fiance visa.

If you would like to have any other questions or concerns answered by our law firm, please check out our K1K3 website and send us an email for a free consultation. We answer all emails with detail and prompt replies. We aim to please and our firm charges fair legal fees so that you can afford professional legal service with expertise and efficiency. We dedicate ourselves and take pride and pleasure in representing you to unite with your loved one in the USA. We look forward to hearing from you at your convenience!

Congratulations once again on your engagement to be married!

One of the greatest fallacies of our current immigration policy is the idea that job creation at home is hindered by business based immigration. If anything, business immigration in the US creates US jobs, as it encourages investment and business opportunities and the spending and taxing of US dollars. By hindering business immigration, we hinder growth, investment, and a forward looking mentality in our country. Instead of bringing the best and brightest from around the world to our country to contribute to our economy and culture, we shut our doors and economic opportunities, as we are crippled by the fear of losing US jobs. As a result, business creation is hindered and jobs and investment are taken elsewhere, as “outsourcing” and taking jobs elsewhere is the only option. For example, just recently, Microsoft was forced to move thousands of jobs and millions of dollars of investment right across the border to Canada. The reason being that the H1B quota of 65,000 (this quota is really 58,000 when you back out Chile and Singapore), didn’t even come close to providing Microsoft with the talented employees it needed. Many critics of the H1B default to the argument that it encourages “cheap labor,” but this just isn’t true as you need to meet the prevailing minimum wage for the occupation and geographic area in order to even get the H1B application to the lottery.

Another problem is the backlog of the green card process, especially with those in the EB3 category and those from China and India in the EB2 category. The green card process is already a very stringent and long process, but now you have qualified and talented foreign individuals waiting years for the opportunity to immigrate to the US. Instead of contributing now to our economy and presenting these individuals with the opportunity to work hard and prosper in our country, we make them wait years, often resulting in either the stagnation of their careers or completely giving up on the process. The end result is that the US loses out on the contributions of these individuals.

The analysis of business immigration and US jobs being taken away from Americans cannot be made in a vacuum. It is not nearly as simple as taking the number of US jobs and then calculating the number of foreign nationals allowed in to take those jobs. The obvious reason for this is that jobs, investment, business, etc. create more jobs, investment, and business. This country is built on immigration and we’ve succeeded because of our ability to attract the best and brightest from around the world over the years. Foreign workers come here with a hunger and drive to succeed and they contribute immensely in a positive way to all aspects of our society. Business immigration creates a synergy that drives and strengthens our economy and allows this country to regenerate itself and avoid stagnation.

In terms of the new administration, it is really anyone’s guess as to what will happen. The interesting thing about immigration is that it is, generally speaking, not necessarily decided along party lines. With a democratic congress and president, we will most likely fair a better chance in terms of achieving some type of reform as compared to what we could expect with a republican president and congress.

We may not see too much occur early on with immigration reform in the new administration. Other factors such as the economy and other unforeseen events may divert the attention early on, but we should remain hopeful that within 2009 the issue will be addressed. The fact of the matter is that we have approximately 12,000,000+ undocumented individuals in this country and severe backlogs and barriers with business and family based immigration. That coupled with a recession doesn’t bode well for our economy. American workers deserve to be protected and it is possible to be pro-business, pro-labor, pro-American, and pro-immigration at the same time. We need to make sure that American businesses are able to compete in a global environment and that American businesses bring jobs to the US, otherwise we will see a lot more Microsoft repeats going forward.

The reform that will come will have to find a balance and look toward not only taking some of the pressure out of the business based immigration categories, but also how to resolve the issue concerning the 12,000,000+ undocumented individuals currently living in this country. Furthermore, any reform will have to address the immigration system going forward so that we do not create the same issues in the future. Throughout the history of the US there has been a synergistic correlation between immigration and business and economic advancement in this country. The more tightening we have with our immigration system, the longer we will suffer in the throngs of recession and stagnation. We also risk the future advancement and success of our country.

One of the greatest fallacies of our current immigration policy is the idea that job creation at home is hindered by business based immigration. If anything, business immigration in the US creates US jobs, as it encourages investment and business opportunities and the spending and taxing of US dollars. By hindering business immigration, we hinder growth, investment, and a forward looking mentality in our country. Instead of bringing the best and brightest from around the world to our country to contribute to our economy and culture, we shut our doors and economic opportunities, as we are crippled by the fear of losing US jobs. As a result, business creation is hindered and jobs and investment are taken elsewhere, as “outsourcing” and taking jobs elsewhere is the only option. For example, just recently, Microsoft was forced to move thousands of jobs and millions of dollars of investment right across the border to Canada. The reason being that the H1B quota of 65,000 (this quota is really 58,000 when you back out Chile and Singapore), didn’t even come close to providing Microsoft with the talented employees it needed. Many critics of the H1B default to the argument that it encourages “cheap labor,” but this just isn’t true as you need to meet the prevailing minimum wage for the occupation and geographic area in order to even get the H1B application to the lottery.

Another problem is the backlog of the green card process, especially with those in the EB3 category and those from China and India in the EB2 category. The green card process is already a very stringent and long process, but now you have qualified and talented foreign individuals waiting years for the opportunity to immigrate to the US. Instead of contributing now to our economy and presenting these individuals with the opportunity to work hard and prosper in our country, we make them wait years, often resulting in either the stagnation of their careers or completely giving up on the process. The end result is that the US loses out on the contributions of these individuals.

The analysis of business immigration and US jobs being taken away from Americans cannot be made in a vacuum. It is not nearly as simple as taking the number of US jobs and then calculating the number of foreign nationals allowed in to take those jobs. The obvious reason for this is that jobs, investment, business, etc. create more jobs, investment, and business. This country is built on immigration and we’ve succeeded because of our ability to attract the best and brightest from around the world over the years. Foreign workers come here with a hunger and drive to succeed and they contribute immensely in a positive way to all aspects of our society. Business immigration creates a synergy that drives and strengthens our economy and allows this country to regenerate itself and avoid stagnation.

In terms of the new administration, it is really anyone’s guess as to what will happen. The interesting thing about immigration is that it is, generally speaking, not necessarily decided along party lines. With a democratic congress and president, we will most likely fair a better chance in terms of achieving some type of reform as compared to what we could expect with a republican president and congress.

We may not see too much occur early on with immigration reform in the new administration. Other factors such as the economy and other unforeseen events may divert the attention early on, but we should remain hopeful that within 2009 the issue will be addressed. The fact of the matter is that we have approximately 12,000,000+ undocumented individuals in this country and severe backlogs and barriers with business and family based immigration. That coupled with a recession doesn’t bode well for our economy. American workers deserve to be protected and it is possible to be pro-business, pro-labor, pro-American, and pro-immigration at the same time. We need to make sure that American businesses are able to compete in a global environment and that American businesses bring jobs to the US, otherwise we will see a lot more Microsoft repeats going forward.

The reform that will come will have to find a balance and look toward not only taking some of the pressure out of the business based immigration categories, but also how to resolve the issue concerning the 12,000,000+ undocumented individuals currently living in this country. Furthermore, any reform will have to address the immigration system going forward so that we do not create the same issues in the future. Throughout the history of the US there has been a synergistic correlation between immigration and business and economic advancement in this country. The more tightening we have with our immigration system, the longer we will suffer in the throngs of recession and stagnation. We also risk the future advancement and success of our country.

One of the greatest fallacies of our current immigration policy is the idea that job creation at home is hindered by business based immigration. If anything, business immigration in the US creates US jobs, as it encourages investment and business opportunities and the spending and taxing of US dollars. By hindering business immigration, we hinder growth, investment, and a forward looking mentality in our country. Instead of bringing the best and brightest from around the world to our country to contribute to our economy and culture, we shut our doors and economic opportunities, as we are crippled by the fear of losing US jobs. As a result, business creation is hindered and jobs and investment are taken elsewhere, as “outsourcing” and taking jobs elsewhere is the only option. For example, just recently, Microsoft was forced to move thousands of jobs and millions of dollars of investment right across the border to Canada. The reason being that the H1B quota of 65,000 (this quota is really 58,000 when you back out Chile and Singapore), didn’t even come close to providing Microsoft with the talented employees it needed. Many critics of the H1B default to the argument that it encourages “cheap labor,” but this just isn’t true as you need to meet the prevailing minimum wage for the occupation and geographic area in order to even get the H1B application to the lottery.

Another problem is the backlog of the green card process, especially with those in the EB3 category and those from China and India in the EB2 category. The green card process is already a very stringent and long process, but now you have qualified and talented foreign individuals waiting years for the opportunity to immigrate to the US. Instead of contributing now to our economy and presenting these individuals with the opportunity to work hard and prosper in our country, we make them wait years, often resulting in either the stagnation of their careers or completely giving up on the process. The end result is that the US loses out on the contributions of these individuals.

The analysis of business immigration and US jobs being taken away from Americans cannot be made in a vacuum. It is not nearly as simple as taking the number of US jobs and then calculating the number of foreign nationals allowed in to take those jobs. The obvious reason for this is that jobs, investment, business, etc. create more jobs, investment, and business. This country is built on immigration and we’ve succeeded because of our ability to attract the best and brightest from around the world over the years. Foreign workers come here with a hunger and drive to succeed and they contribute immensely in a positive way to all aspects of our society. Business immigration creates a synergy that drives and strengthens our economy and allows this country to regenerate itself and avoid stagnation.

In terms of the new administration, it is really anyone’s guess as to what will happen. The interesting thing about immigration is that it is, generally speaking, not necessarily decided along party lines. With a democratic congress and president, we will most likely fair a better chance in terms of achieving some type of reform as compared to what we could expect with a republican president and congress.

We may not see too much occur early on with immigration reform in the new administration. Other factors such as the economy and other unforeseen events may divert the attention early on, but we should remain hopeful that within 2009 the issue will be addressed. The fact of the matter is that we have approximately 12,000,000+ undocumented individuals in this country and severe backlogs and barriers with business and family based immigration. That coupled with a recession doesn’t bode well for our economy. American workers deserve to be protected and it is possible to be pro-business, pro-labor, pro-American, and pro-immigration at the same time. We need to make sure that American businesses are able to compete in a global environment and that American businesses bring jobs to the US, otherwise we will see a lot more Microsoft repeats going forward.

The reform that will come will have to find a balance and look toward not only taking some of the pressure out of the business based immigration categories, but also how to resolve the issue concerning the 12,000,000+ undocumented individuals currently living in this country. Furthermore, any reform will have to address the immigration system going forward so that we do not create the same issues in the future. Throughout the history of the US there has been a synergistic correlation between immigration and business and economic advancement in this country. The more tightening we have with our immigration system, the longer we will suffer in the throngs of recession and stagnation. We also risk the future advancement and success of our country.

In view of a few leading IT companies coming under a cloud of uncertainty recently, we have been getting calls from anxious employees, who are on L1 status, exploring options for change of status to H-1B.

Option One:

If the person has ever been on H-1B classification within the past six years and has not stayed outside the US for a period of one year or more since getting the H-1B status, he/she is eligible to change status to H-1B right away, i.e., an employer can file an H-1B petition with change of status from L-1 to H-1B.

Option Two:

Find an Employer who is exempt from H-1B quota cap and have them file an H-1B petition with change of status right away. Of course, such petition has to be approved before the individual can work for the new Employer.

Since most persons may not find the either of the above options available and/or feasible, the next option is to have a cap-subject H-1B petition file on April 1 to start employment on October 1. If such an employer is found and the Petition could be filed on April 1, these are the possible scenarios, depending on the individual’s visa validity and status of employment:

Scenario 1:

The individual has to leave the US before April 1st: Have the employer file the H-1B petition on April 1, for Consular Processing. The H-1B gets approved and sent to the Consulate overseas; the individual gets the H-1B stamp and returns to the US to start working for the H-1B employer on October 1st.

Scenario 2:

The individual has L-1 validity up to or beyond September 30th and he/she will be in the US on L-1 status until September 30: Have the new employer file the H-1B petition on April 1 with a change of status to H-1B. If this petition is approved, the individual gets a new I-94 with the H-1B validity dates. If he/she has maintained valid L-1 status until September 30, he/she can start working the for the H-1B employer on October 1 without having to leave the US.

Scenario 3:

The individual assumes the Scenario 2 above, but loses the job and/or L-1 status before September 30 (i.e., after filing the H-1B change of status petition) and has to leave the US: Two things can happen:

a) The USCIS finds out that the individual has left the US and asks the employer (through a Request for Evidence, or RFE) to name a Consulate where to send the approved H-1B. The employer responds appropriately, and the H1B gets approved, sent to the Consulate, and the individual gets the visa stamp and returns to the US to start employment on October 1st.

b) The USCIS approves the H-1B petition with change of status, giving new I-94 with new validity dates: Still, since the beneficiary is overseas, the H-1B has to be stamped in his/her passport before he/she can come back to the US to begin working for the H-1B employer.

In all the above situations, please be mindful of the fact that an individual can remain in the US for a total of six years on L-1 and H-1B status combined. H-1B status for a seventh year and beyond can be obtained depending on whether and when a Labor Certification application or an Immigrant Visa petition has been filed on behalf of the individual.

If the individual on L-1 has L-2 dependents in the US, such dependents will lose their status when the L-1 person loses his/her status. If such L-2 dependents are working using EADs, they should stop working immediately on losing L-2 status. They should either leave the US or change status to H4 if and when H-1B status is available to the L-1 person. No EAD is available to persons on H4.

Copyright: The Law Offices of Morley J. Nair, Inc.

One of the greatest fallacies of our current immigration policy is the idea that job creation at home is hindered by business based immigration. If anything, business immigration in the US creates US jobs, as it encourages investment and business opportunities and the spending and taxing of US dollars. By hindering business immigration, we hinder growth, investment, and a forward looking mentality in our country. Instead of bringing the best and brightest from around the world to our country to contribute to our economy and culture, we shut our doors and economic opportunities, as we are crippled by the fear of losing US jobs. As a result, business creation is hindered and jobs and investment are taken elsewhere, as “outsourcing” and taking jobs elsewhere is the only option. For example, just recently, Microsoft was forced to move thousands of jobs and millions of dollars of investment right across the border to Canada. The reason being that the H1B quota of 65,000 (this quota is really 58,000 when you back out Chile and Singapore), didn’t even come close to providing Microsoft with the talented employees it needed. Many critics of the H1B default to the argument that it encourages “cheap labor,” but this just isn’t true as you need to meet the prevailing minimum wage for the occupation and geographic area in order to even get the H1B application to the lottery.

Another problem is the backlog of the green card process, especially with those in the EB3 category and those from China and India in the EB2 category. The green card process is already a very stringent and long process, but now you have qualified and talented foreign individuals waiting years for the opportunity to immigrate to the US. Instead of contributing now to our economy and presenting these individuals with the opportunity to work hard and prosper in our country, we make them wait years, often resulting in either the stagnation of their careers or completely giving up on the process. The end result is that the US loses out on the contributions of these individuals.

The analysis of business immigration and US jobs being taken away from Americans cannot be made in a vacuum. It is not nearly as simple as taking the number of US jobs and then calculating the number of foreign nationals allowed in to take those jobs. The obvious reason for this is that jobs, investment, business, etc. create more jobs, investment, and business. This country is built on immigration and we’ve succeeded because of our ability to attract the best and brightest from around the world over the years. Foreign workers come here with a hunger and drive to succeed and they contribute immensely in a positive way to all aspects of our society. Business immigration creates a synergy that drives and strengthens our economy and allows this country to regenerate itself and avoid stagnation.

In terms of the new administration, it is really anyone’s guess as to what will happen. The interesting thing about immigration is that it is, generally speaking, not necessarily decided along party lines. With a democratic congress and president, we will most likely fair a better chance in terms of achieving some type of reform as compared to what we could expect with a republican president and congress.

We may not see too much occur early on with immigration reform in the new administration. Other factors such as the economy and other unforeseen events may divert the attention early on, but we should remain hopeful that within 2009 the issue will be addressed. The fact of the matter is that we have approximately 12,000,000+ undocumented individuals in this country and severe backlogs and barriers with business and family based immigration. That coupled with a recession doesn’t bode well for our economy. American workers deserve to be protected and it is possible to be pro-business, pro-labor, pro-American, and pro-immigration at the same time. We need to make sure that American businesses are able to compete in a global environment and that American businesses bring jobs to the US, otherwise we will see a lot more Microsoft repeats going forward.

The reform that will come will have to find a balance and look toward not only taking some of the pressure out of the business based immigration categories, but also how to resolve the issue concerning the 12,000,000+ undocumented individuals currently living in this country. Furthermore, any reform will have to address the immigration system going forward so that we do not create the same issues in the future. Throughout the history of the US there has been a synergistic correlation between immigration and business and economic advancement in this country. The more tightening we have with our immigration system, the longer we will suffer in the throngs of recession and stagnation. We also risk the future advancement and success of our country.