News & Resources
Posted January 27, 2020 Articles
On January 27, 2020, the Supreme Court voted 5-4 to allow the Department of Homeland Security’s public charge regulation to go into effect immediately while the appeals process plays out in the lower courts. The decision applies to all states except Illinois, which is currently covered by a separate injunction that was not at issue before the Supreme Court.
The public charge regulation was set to take effect in October 2019 before being delayed by a preliminary injunction issued by the Federal District Court for the Southern District of New York. The regulation expands the groups of applicants subject to the public charge review to include not only adjustment of status applicants, but also applicants applying for changes and extensions of status. In addition, it also allows officers to assess whether an adjustment of status applicant is likely to become a public charge in the future.
For more information on the rule, please see our recent blog post on the topic.
Tax and immigration law share intersecting objectives in that both seek to define rights and obligations based on a person’s status in the U.S. (e.g. non-resident alien, green card holder, U.S. citizen). The clearest example of this is the significant event of becoming a legal permanent resident (green card holder). The act of becoming a legal permanent resident (even conditional) triggers taxation on worldwide income and transfer tax on worldwide assets for U.S. tax purposes. This obligation begins immediately upon entering the U.S. and receiving a green card.
There is minimal tax difference between how green card holders and U.S. citizens are treated in that green card holders possess the same tax responsibilities as U.S. citizens. Green card holders do however, miss out on some citizen exclusive benefits. For example, the inability to take advantage of the foreign earned income exclusion on tax returns (while the IRS permits green card holders to take this exclusion, doing so can severely undercut a claim to maintaining legal permanent resident status).
Because taxation is an area where prospective green card recipients can save a lot of money, pre-immigration tax planning is well advised. Some strategies to minimizing income tax include engaging in certain transactions prior to moving to the U.S.; accelerating gains and deferring losses; offshore trusts; and accelerating gifts (to reduce the overall taxable estate). As such, future green card holders would be wise to take the time to meet with an experienced adviser who is familiar with U.S. tax law and can provide advice on what it means to become a U.S. taxpayer and how best protect their wealth.
Meltzer Hellrung is a boutique law firm that provides pragmatic business immigration management support, including long-term strategies for navigating the US immigration system and responsive day-to-day legal services.
Posted January 9, 2020 Articles
Recently, Congress has passed two bills that fund the federal government, including the Departments of State, Homeland Security, and Labor, among other federal agencies. These departments and agencies will be funded through Fiscal Year 2020, which ends on September 30, 2020.
Fortunately, these bills reauthorize some important immigration operations, such as E-Verify, the Conrad 30 Waiver Program (for foreign medical graduates who work in underserved areas and special non-minister religious worker program) and EB-5 Regional Center program. Specifically for EB-5, this reauthorization through September 30, 2020 is aligned with the recent USCIS regulation that increases the minimum EB-5 investment levels and gives USCIS sole authority over the designation of Targeted Employment Areas (TEAs).
The passage of the spending bills mean that there will be no interruption of federal immigration operations at this time.
If you have any concerns regarding any information stated above, please contact your attorney at Meltzer Hellrung LLC.
Posted January 3, 2020 H-1B
With the annual April H-1B cap right around the corner now is a great time to start thinking about individuals you’d like to sponsor and opening cases. This is also the first year that USCIS will require a pre-registration for the lottery, requiring companies to register and pay a $10 fee for each H-1B in order to be submitted to the lottery. Full H-1B petitions will only be submitted for individuals selected through this pre-registration process.
The H-1B cap officially opens on March 1, 2020 and be open for registration until March 20, 2020. Starting the process early can provide peace of mind as the lottery approaches knowing that the cases have been filed with the registration system.
Employers may wish to consider sponsoring the following:
- Employees in F-1 OPT or CPT status
- Employees who are currently working abroad
- Employees in other visa statuses who may be sponsored for a green card
- Employees working on an H-4 EAD
- Employees currently on TN status
Due to the nature of the H-1B cap, even if an employee’s current status is valid until 2020 or later, you may want to consider filing an H-1B cap case now so that they have more chances at the cap. This past April, USCIS received 201,011 petitions for 85,000 spots.
For companies that place employees at client sites, starting the H-1B process early can provide more time to ensure that sufficient evidence regarding the client relationship can be obtained. Providing client documents early allows your business immigration attorney ample time to review them and for additional documents to be obtained in the event of incomplete or insufficient evidence. Not having the proper documentation can result in an inability to file the case or a Request for Evidence later.
We encourage you to speak with you Meltzer Hellrung LLC attorney about any individuals you’d like to sponsor or if you have questions about the types of positions that qualify for an H-1B.
Meltzer Hellrung recently successfully represented an employer in federal court, challenging an H-1B denial. While you will not find a published opinion from a judge, we secured the desired outcome; the USCIS overturned the denial and the employee can now resume working for the employer.
Litigation can be a potentially great option for numerous scenarios, including:
- Denials of petitions at USCIS (please note that litigation is not an option for petitions at consulates or the US border)
- Unreasonable delays in adjudicating petitions. This can be a great proactive strategy to deal with the extensive delays many individuals are experiencing when filing for EAD cards
- Shortened approval periods, such as when USCIS grants a six month approval for an H-1B where a three-year period was requested
As the USCIS becomes more aggressive, and frankly more arbitrary, in its decision making, we are encouraging clients to strongly consider litigation as an option. Litigation, suing the USCIS in federal court, can have numerous benefits:
- Litigation can be a provide a higher chance of overturning a denial than a motion to reopen or appeal to the Administrative Appeals Office (AAO)
- Litigation can actually be faster than filing an appeal or motion to reopen/reconsider
- By seeking review in front of a federal judge, we keep the agency honest, and make them defend bad decisions
- The USCIS is litigation averse, and challenging the agency once in court can make the agency more likely to provide favorable decisions in the future
- Litigation provides avenues to challenge decisions that are not actually able to be appealed at the USCIS itself
One of the reasons that litigation can be such an attractive and successful option is that when litigating the case moves from the USCIS independently, to the local US Attorney's office. The US Attorney is the local federal prosecutor, who is charged with handling federal crimes, major litigation, and other pressing federal matters. A single H-1B or EAD card application is a low priority in these offices.
To challenge the USCIS process we need to file a complaint in federal court. The complaint alleges what the USCIS is doing wrong. The US government, through the US Attorney's office, then has sixty days to respond to the complaint in some way.
The US Attorney's offices, and the USCIS, often do not want to spend time and resources litigating these cases. First the cases can be a low priority in terms of allocation of resources, and second, the USCIS often does not want to create settled law around bad decisions. The easiest thing to do is for the USCIS to make the case go away by overturning the denial or issuing the requested EAD, rather than filing some sort of motion with a legal argument, within sixty days.
To learn more about the litigation process and how we can be of assistance, please speak to your Meltzer Hellrung attorney.