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    Published on 02-16-2018 03:44 PM

    10 Things Every Departing Alien Needs to Know About IRS "Sailing" Permits


    Before leaving the United States, all aliens (except those listed below) must obtain a “Certificate of Compliance” from the U.S. Internal Revenue Service (“IRS”). This document, also known as a “Sailing Permit” or a “Departure Permit,” must be secured from the IRS prior to leaving the United States. Here are ten things to know about Sailing Permits:

    NOTE: This post is designed to provide practical and useful information on the subject matter covered. It is provided, however, with the understanding that no legal or tax services are being rendered or provided. U.S. tax matters are particularly complicated. If tax assistance is required, the services of a competent tax professional should be sought.

    1. Filing with IRS. To obtain a “Sailing Permit,” a departing alien must file a Form 2063 or Form 1040-C (whichever applies) with IRS. A departing alien cannot apply earlier than thirty (30) days before his/her planned departure date. Do not wait until the last minute in case there are unexpected problems. Both forms have a “Certificate of Compliance” section, which, when signed by the IRS, certifies that the departing alien’s U.S. tax obligations have been satisfied according to available information. The Form 1040-C copy of the signed certificate, or the one detached from Form 2063, is the “Sailing Permit.” It is advisable for aliens to get the “Sailing Permit” from an IRS office around their employment, but it can also be obtained from an IRS office in the area of their departure.
    1. Form 2063. This short form does not include a tax computation. The following departing aliens can get the “Sailing Permit” by filing the Form ...
    Published on 02-15-2018 02:50 PM

    Bills Introduced in Both Chambers Provide Common Sense Solution for Dreamers


    Senators McCain (R-AZ) and Coons (D-DE) introduced the United and Securing America (U.S.A) Act in the Senate this week, which includes a permanent solution for Dreamers as well as border security measures.

    While the recently released White House immigration framework has not enjoyed bipartisan support, versions of this bill in the House of Representatives and Senate have backing from both Democrats and Republicans. This indicates that a narrower approach has the best chance at passage.

    The timing of this bipartisan legislation is significant, as it may represent the first real effort by Senate Republicans to bring an immigration bill to the floor to save Deferred Action for Childhood Arrivals recipients after their promise to do so during last month’s government shutdown.

    In exchange for ending the government shutdown ...

    Published on 02-14-2018 03:10 PM

    ABC’s of H-1Bs (This Is Part 2 Of An 8 Part Series). How Much Do Prospective H-1B Employers Need To Pay To H-1B Employees And Why The Federally Mandated Prevailing Wage Is So Important


    The H-1B visa program permits a United States employer (“employer”) to temporarily employ nonimmigrants to fill specialized jobs in the United States. The Immigration and Nationality Act (the “INA” or the “Act”) requires that an employer pay an H-1B worker the higher of the actual wage or the local prevailing wage, in order to protect U.S. workers and their wages. Under the Act, an employer seeking to hire a foreign national in a specialty occupation on an H-1B visa must receive permission from the Department of Labor (“DOL”) before the foreign national may obtain an H-1B visa. The Act defines a “specialty occupation” as an occupation requiring the application of highly-specialized knowledge and the attainment of a bachelor’s degree or higher. The Act requires an employer seeking permission to employ an H-1B worker to submit and receive an approved Labor Condition Application (“LCA”) from the DOL.

    The employer should be extremely cautious in making attestations on the LCA and complying with the regulations governing it. Knowingly and willingly furnishing any false information in the preparation of the LCA and any supporting documentation, OR even aiding, abetting, or counseling another to do so is a federal offense, punishable by fine or imprisonment up to five (5) years or both. Other penalties ...

    Published on 02-13-2018 12:07 PM

    Prepare for Tough RFEs for Specialty Occupation this H1B Season


    Last year, we saw an unprecedented expansion in RFEs for Specialty Occupation, hitting H1B candidates in computer programmer positions at level 1 wages the hardest. This year, we expect these RFEs to continue to be even tougher and more widespread.

    That means, if you, or your client or employee has a “borderline” job – meaning these jobs don't necessarily require a US bachelor's degree or its equivalent according to the US Department of Labor's Occupational ...

    Published on 02-12-2018 11:23 AM

    President Obama and Latina/o Removals: The Quest for Immigration Reform


    Hoping to help persuade Congress to enact immigration reform, President Barack Obama initially took steps that unsettled some of his most ardent supporters. From the beginning, the administration sought to demonstrate a commitment to enforcement by increasing the number of noncitizens removed from the United States; the hope was that such a demonstration would improve the likelihood that Republicans in Congress would support a compromise immigration reform package.

    To increase removals, the Obama administration refined a pre-existing program known as “ Secure Communities ,” which focused on state and local criminal justice systems to feed the federal removal pipeline. As reconfigured, that program required state and local law enforcement agencies to share information with the U.S. government about noncitizens, including lawful permanent residents as well as undocumented immigrants, who were arrested by state and local law enforcement agencies. See Christopher N. Lasch, Rendition Resistance, 92 N.C. L. Rev. 149, 207–08 (2013) (summarizing the operation of the Secure Communities program under President Obama). Secure Communities further required law enforcement agencies to detain noncitizens eligible for release from state and local custody, so that federal immigration authorities could, at their discretion, directly take custody of noncitizens for possible removal from the United States.

    Besides claiming that the program infringed on state and local police powers, critics of the revamped Secure Communities program pointed to its devastating impacts on immigrants as well as their families and communities. See, e.g., Aarti Kohli, Peter L. Markowitz & Lisa Chavez, Secure Communities by the Numbers: An Analysis of Demographics and Due Process (Chief Justice Earl Warren Institute on Law and Soc. Pol’y, UC Berkeley, Oct. 2011), available at https://www.law.berkeley.edu/files/S...he_Numbers.pdf ; Rachel R. Ray, Insecure Communities: Examining Local Government Participation in US Immigration and Customs Enforcement’s “Secure Communities” Program , 10 Seattle J. ...

    Published on 02-12-2018 11:19 AM

    The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir


    Foreign nationals with removal orders are in an extremely vulnerable situation. Even if they are asked to report on a regular basis under an order of supervision, there is no guarantee that a whimsical ICE officer the next they show up to an interview may decide to apprehend this person with handcuffs and expel them from the country. ICE may also decide to make a pre-dawn arrest of an undocumented person at home in front of family members including children , arrest those who are attempting to regularize this status , or even victims of domestic violence seeking to escape their abusers.

    Or if this person is an activist protesting against ICE’s tactics and fighting for the rights of immigrants, ICE could retaliate by arresting him or her with the goal of removing this so called “irritant” from the United States. Indeed, no one appears to be beyond the reach of ICE’s heavy handedness in the Trump era.

    At issue is whether a removable person has been allowed to stay in the US, and regularly report to ICE, can this person one day be suddenly apprehended without the chance to say goodbye to his family?

    This was the very issue raised in Ragbir v. Sessions before Judge Katherine B. Forrest in a petition for habeas corpus in the United States District Court for the Southern District of New York. Ravi Ragbir has lived in the US for over 25 years, but in the last ten years was subject to a final order of removal based on a deportable criminal conviction. ...

    Published on 02-09-2018 02:54 PM

    Regulating Employment: A Barrier to Comprehensive Immigration Reform


    Some thoughts about long term comprehensive immigration reform:

    Few knowledgeable observers would disagree that the revamping of the nation’s immigration laws is a complex matter, both politically and policy-wise. The near-misses with comprehensive immigration reform efforts illustrate the formidable political challenges. In 2013, for example, a bipartisan group of the Senate passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering border enforcement, and providing a path to legalization for undocumented immigrants in the United States. That legislation, as one might expect, had components that were not altogether satisfying to supporters and opponents of reform. Ultimately, the leadership of the Republican-controlled House of Representatives prevented a vote on that compromise piece of legislation.

    The policy challenges of immigration reform, including reducing the pressures for undocumented immigration, also are formidable. It goes without saying that, as the United States has experienced, immigration reform that would remedy the system’s current shortcomings is hard to come by. The

    Published on 02-08-2018 05:07 PM

    State of the Union Speech Highlights President Trump’s Vision for Massive Reductions in Immigration


    President Trump gave his first State of the Union address to Congress this week, during which he shared his vision for America’s future immigration policy —and it’s bleak.

    The address echoed much of the White House’s restrictive immigration framework released last week, which envisions a path to citizenship for the 1.8 million immigrants eligible for the Deferred Action for Childhood Arrivals (DACA) initiative, but only in exchange for a massive border package, drastic cuts to family immigration, and complete elimination of the diversity visa .

    Like his framework, the president’s speech called for massive cuts to long-standing family reunification programs (what he maliciously labels “chain migration”).

    The President erroneously ...

    Published on 02-07-2018 04:35 PM

    The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification


    As we have previously blogged , many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

    The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018) ; and Matter of G-J-S-USA, Inc. , ID# 1182139 (AAO Jan. 25, 2018) , concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

    In Matter of B-C -, the Petitioner sought to temporarily employ the Beneficiary as a geotechnical engineer-in-training (EIT) under the H-1B classification. The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition. The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with DOL’s generic definition of a Level I wage. Id. at 3.

    Published on 02-06-2018 02:30 PM

    Already Facing a Backlog, Sessions Aims to Add 350,000 Cases to Immigration Courts


    In a rare move, Attorney General Jeff Sessions recently referred an immigration case to himself , invoking a federal statute that allows attorneys general to reconsider cases decided by the Board of Immigration Appeals, which hears appeals from immigration courts nationwide. Sessions referred the case to himself after an immigration judge recently closed the administrative proceedings in an immigration case—a standard procedure in immigration court that Sessions now plans to examine and possibly eliminate.

    This procedure, known as “administrative closure,” is a process by which an immigration judge decides that removing a case from its active court docket is the best course of action. As a result, it is an important tool that permits overburdened immigration judges to better control their dockets by allowing them to prioritize the hearings they conduct. The Board of Immigration Appeals has described administrative closure as an “attractive option” for immigration judges to “avoid the repeated rescheduling of a case that is clearly ...

    Published on 02-05-2018 04:48 PM

    ABC’s of H-1Bs (This Is Part 2 Of An 8 Part Series). How Much Do Prospective H-1B Employers Need To Pay To H-1B Employees And Why The Federally Mandated Prevailing Wage Is So Important


    Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first make a filing with the Department of Labor (DOL) and obtain a Labor Condition Application (LCA). The LCA, among other things, must specify the number of workers sought, the occupational classification in which the H-1B will be employed, and the wage rate and conditions under which the proposed H-1B nonimmigrant will be employed. Additionally, the employer must attest that it is offering, and will continue to offer, during the period of H-1B employment, the greater of: (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment position in question; OR (2) the prevailing wage level for the occupational classification in the intended area of employment.

    If required to pay the prevailing wage, the wage must be 100% of the prevailing wage. The prevailing wage is determined for the occupational classification in the area of intended employment and must be determined as of the time of the filing of the LCA[i]. The regulations require that the prevailing wage be based upon the best information available. An employer that fails to pay wages as required is liable ...

    Published on 02-05-2018 04:35 PM

    Updated-I-601A/I-601 Cases - PDF with Elements of Success Series



    (Elements of Success Series)

    ***Updated Text - Previous Mailing Referenced Incorrectly L-1A Case***

    Dear Clients and Friends,

    As part of our "Elements of Success" series of infographic, we have enclosed a PDF chart depicting some of the essential considerations to take into account when planning and strategizing I-601A/I-601 cases.

    As always, we hope that your firm will find it useful in ...

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