Category Archives: Business Immigration

Temporary Protected Status (TPS)

Coleman Jackson, P.C. | Transcript of Legal Thoughts
Published December 12, 2022

Overview:

Legal Thoughts is an audiocast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, contract litigation, and immigration legal matters.

This episode of Legal Thoughts is an audiocast where the Attorney, Coleman Jackson is being interviewed by Alexis Brewer, Tax Legal Assistant of Coleman Jackson, P.C. The topic of discussion is “TEMPORARY PROTECTED STATUS (TPS).” You can listen to this podcast by clicking here: https://anchor.fm/coleman-jackson/episodes/TEMPORARY-PROTECTED-STATUS-TPS-e1ot2v4

If you enjoy this podcast, make sure to stay tuned for more episodes from the taxation, litigation, and immigration Law Firm of Coleman Jackson, P.C. Be sure to subscribe. Visit the taxation, litigation and immigration law firm of Coleman Jackson, P.C. online at www.cjacksonlaw.com.

TRANSCRIPT:

ATTORNEY: Coleman Jackson

LEGAL THOUGHTS

COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY: Coleman Jackson

Welcome to Legal Thoughts

My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, contract litigation and immigration law firm based in Dallas, Texas.

In addition to myself, we have Alexis Brewer – Tax Legal Assistant, Leiliane Godeiro – Litigation Legal Assistant, and Johanna Powell – Tax Legal Assistant.

On today’s “Legal Thoughts” podcast, our Tax Legal Assistant, Alexis Brewer, will be interviewing me on the important immigration topic of: “TEMPORARY PROTECTED STATUS.”

INTERVIEWER: Alexis Brewer, Legal Assistant

Hi everyone, my name is Alexis Brewer and I am a Tax Legal Assistant at the tax, contract litigation and immigration law firm of Coleman Jackson, Professional Corporation. Our law firm is located at 6060 North Central Expressway, Suite 620, right here in Dallas, Texas.

Good afternoon, Attorney; thank you for agreeing to sit with me as I interview you with respect to this important immigration law topic: “TEMPORARY PROTECTED STATUS?”

Let’s jump right in,

Question 1: What does the legal term “Temporary Protected Status” mean?

Attorney Answer – Question 1:

Good morning, Alexis. The Immigration Act of 1990 (IMMACT 90) established a procedure by which the U.S. Attorney General may provide Temporary Protected Status (TPS) to nationals of a particular country who are in the United States and are unable to return to their home country due to-

Ongoing armed conflict within the state and, due to that conflict, the return of nationals to that state would pose a serious threat to their personal safety.
An environmental disaster resulting in a substantial, temporary disruption of living conditions, the state is temporarily unable to adequately handle returning nationals and the state therefore requests TPS designation.
Other extraordinary and temporary conditions in the state that prevent nationals from returning safely, unless the Attorney General finds that permitting nationals of the state to remain temporarily is contrary to the national interest of the United States.

After consultation with the appropriate agencies of the government, the Attorney General (AG) may decide to designate a foreign state or part thereof as eligible for TPS because one or more of the reasons discussed in this podcast have been met.

Notice of the designation is published in the Federal Register. TPS designation will be effective for a minimum of 6 months to a maximum of 18 months. Sixty days prior to the end of the designated TPS period, the Attorney General will review the conditions in the designated state and determine whether the designated conditions still exist. If so, the TPS designation could be extended for an additional 6, 12, or 18 months.

INTERVIEWER: Alexis Brewer, Legal Assistant

That leads me right into my next question –

Question 2: Who is eligible to apply for Temporary Protected Status?

Attorney Answer – Question 2:

That’s a great question.

An individual may be eligible for TPS if they are a national of a country designated by the Attorney General for Temporary Protected Status, or if the individual is a person who has no nationality but last habitually resided in the TPS designated country.

Individuals must consult the Federal Register or USCIS website to ascertain whether they are nationals of countries with TPS designations and they must apply for TPS during the specified registration period.

Certain individuals are ineligible for TPS; such as,

Individuals who are not nationals of the designated TPS country. Non-nationals who have not habitually resided in the designated country just prior to coming to the United States are also ineligible;
Individuals who do not register for TPS during the initial registration period;
Individuals who cannot demonstrate continuous physical presence in the United States since the effective date of the TPS designation;
Individuals who are inadmissible as an immigrant due to conviction of any felony or two or more misdemeanors and individuals who are inadmissible for other reasons, such as, national security; and
Individuals who do not meet residency requirement stated by the Attorney General when making the designation.

INTERVIEWER: Alexis Brewer, Legal Assistant

Question 3: What are some benefits for individuals who are in the United States on temporary protected status?

Attorney Answer – Question 3:

The benefits that an individual can obtain by applying for temporary protected status during the designated TPS registration period are that upon approval of their Form I-821:

Individuals on TPS can reside in the United States without the fear of being deported to their home country
Individuals on TPS can apply for work authorization by filing Form I-765 when they file for TPS and work anywhere in the country;
Individuals on TPS can file Form I-131 to apply for advance parole to obtain travel authorization; and
Some of the filing fees may be waived upon request.

These are some of the legal benefits that individuals could obtain by Temporary Protected Status. A real and enormous benefit of TPS is the potential to live a peaceful and productive life.

INTERVIEWER: Alexis Brewer, Legal Assistant

Question 4: What happens when the temporary protected status designated period ends?

Attorney Answer – Question 4:

Temporary protected status is a temporary benefit. TPS does not lead to lawful permanent resident status nor does it lead to any other immigration status. Therefore, when the TPS period ends the national of the designated country must return to their home country, or they will begin to accrue unlawful presence in the United States. The national can be deported from the United States if they refuse to leave voluntarily once their TPS ends.

Keep in mind; however, the Attorney General may review the conditions in the designated country and extend the TPS designation as I discussed earlier during this podcast. TPS can be extended and often has been extended in the past. Some individuals have been here for years on TPS. Good examples of this are nationals here on TPS from El Salvador, Haiti, Honduras, Nepal, and Nicaragua.

INTERVIEWER: Alexis Brewer, Legal Assistant

Question 5: What countries have the Attorney General currently designated for Temporary Protected Status?

Attorney Answer – Question 5:

The Attorney General has made many TPS designations over the years; current designated countries are – Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Ukraine, Venezuela, and Yemen.

For specified designations and eligibility and other issues regarding a particular country, a particular national or particular habitual resident of a designated country, we need to evaluate each situation on a case-by-case basis in our office since often the application of law is more complex than it might first seem. Facts matter in law as they do in life.

INTERVIEWER: Alexis Brewer, Legal Assistant

Attorney, I know you touched on Temporary Protected Status eligibility requirements previously; but could you expand on this since immigrant cases can have a lot of complicating facts and circumstances.
Question 6: What are the eligibility requirements for nationals of the Temporary Protected Status designated countries?

Attorney Answer – Question 6:

True, as I have previously stated, facts matter in law and in life! Nationals and habitual residence of the TPS designated country must apply for TPS and meet all of the following eligibility requirements:

Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country;
Apply during the open initial registration or re-registration period, or you meet the requirements for late initial filing during any extension of your country’s TPS designation;
Have been continuously physically present (CPP) in the United States since the effective date of the most recent designation date of your country; and
Have been continuously residing (CR) in the United States since the date specified for their home country. The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent departures from the United States. When you apply or re-register for TPS, you must inform USCIS of all absences from the United States since the CPP and CR dates. USCIS will determine whether the exception applies in your case. USCIS exercises discretion in TPS cases; so, the presentation of your case matters.

INTERVIEWER: Alexis Brewer, Legal Assistant

Question 7: What kind of things could make an individual ineligible for Temporary Protected Status?

Attorney Answer – Question 7:

An individual may not be ineligible to apply for temporary protected status if they:

Have been convicted of a felony or two or more misdemeanors committed in the United States;
Are found inadmissible as an immigrant under inadmissible grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
Are subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity;
Failure to meet the continuous physical presence and continuous residence in the United States requirements;
Failure to meet initial or late initial TPS registration requirements; or
If granted TPS, failure to re-register for TPS, as required, without good cause.

Interviewer Wrap-Up

Attorney, thank you for siting with me today to explain you for being here today with us, this information is very important for nationals who are here in the United States and who are from countries designated by the U.S. Attorney General as temporary protected status (TPS).

It seems like the take away here is that some nationals in the United States could be eligible to apply for temporary protected status but the process could be complex and require attorney guidance and representation.

To our listeners who want to hear more podcast like this one please subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or where ever you listen to your podcast. Take care, everyone! And come back in about two weeks, for more taxation, litigation and immigration Legal Thoughts from Coleman Jackson, P.C., located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620, Dallas, Texas 75206.

English callers: 214-599-0431 | Spanish callers: 214-599-0432 |Portuguese callers: 214-272-3100

Attorney Closing Remarks

This is the end of today’s Legal Thoughts!

Thank you all for giving us the opportunity to inform you about: “TEMPORARY PROTECTED STATUS”

If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever you listen to your podcast.

Stay tuned! We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care.

How to Obtain an EB-3 Visa?

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Coleman Jackson, P.C. | Transcript of Legal Thoughts
Published November 14, 2022

Overview:

This episode of Legal Thoughts is an audiocast where the Attorney, Coleman Jackson is being interviewed by Alexis Brewer, Legal Assistant of Coleman Jackson, P.C. The topic of discussion is: “How to Obtain an Eb-3 Visa?”

You can listen to this podcast by clicking here:

https://anchor.fm/coleman-jackson/episodes/HOW-TO-OBTAIN-AN-EB-3-VISA-e1oihn3

TRANSCRIPT:

ATTORNEY: Coleman Jackson

LEGAL THOUGHTS

COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY: Coleman Jackson

Welcome to Legal Thoughts

My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, contract litigation and immigration law firm based in Dallas, Texas.

In addition to myself, we have Alexis Brewer – Tax Legal Assistant, Leiliane Godeiro – Litigation Legal Assistant, and Johanna Powell – Tax Legal Assistant.

On today’s “Legal Thoughts” podcast, our Tax Legal Assistant, Alexis Brewer, will be interviewing me on the important topic of: “How to Obtain an Eb-3 Visa?”

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Hi everyone, my name is Alexis Brewer and I am a Legal Assistant at the tax, contract litigation and immigration law firm of Coleman Jackson, Professional Corporation. Our law firm is located at 6060 North Central Expressway, Suite 620, right here in Dallas, Texas.

Good afternoon, Attorney; thank you for agreeing to sit with me as I interview you with respect to EB-3 visas. Let’s jump right in –

Question 1: What is an EB-3 Visa?

Attorney Answer – Question 1:

Hello Alexis.

An EB-3 Visa a third preference business visa for immigrants who are skilled workers, professionals, or other workers who want to live and work in the United States. Let me explain this visa category.

USCIS considers a person a “skilled worker” if they have a job that requires a minimum of 2 years of training, or experience. In other words, the job is not temporary or seasonal. USCIS considers a worker a “professional” if their job requires a U.S. baccalaureate degree or a foreign equivalent. Lastly, the “other worker” category is for people who work in unskilled labor that require less than 2 years of training but are not temporary or seasonal jobs.

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 2: Well attorney, what are the requirements for an EB-3 Visa?

Attorney Answer – Question 2:

Whether you are applying for an EB-3 Visa under the skilled worker, professional, or unskilled worker subcategories, you are required to present a labor certification AND show proof of a permanent full-time job offer.

The labor certification must be approved by the Department of Labor by the employer filing Form ETA-9089.

Additionally, an employer must file Form I-140 Petition for Alien Worker on behalf of the applicant. The employer must be able to demonstrate an ability to pay through annual reports, federal income tax returns, etc. Lastly, an employer must obtain the labor certification form to show that there are no Americans who are willing or qualified to fill the position.

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 3: Can EB-3 visa-holders bring family members through on their EB-3 Visa?

Attorney Answer – Question 3:

Yes, Alexis. As an EB-3 Visa recipient you can bring immediate family members with you to the United States on a separate petition. For EB-3 purposes, an immediate family member includes a spouse, and any dependent children who are under 21.

Children are able to attend school and a spouse may complete an Employment Authorization Document or obtain a green card to work. More specifically, a legal spouse of an EB-3 recipient under the “skilled worker” or “professional subcategory” can apply for an E-34 visa. If the EB-3 recipient is under the “other worker” subcategory then their spouse can apply for an EW-4 visa.

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 4: Can an EB-3 Visa lead to a Green Card?

Attorney Answer – Question 4:

This is a great question –

A significant benefit of obtaining an EB-3 visa is that it provides a recipient with a green card. In the EB-3 context, an employer is the petitioner, and the immigrant applicant is the beneficiary.

Green cards provide a multitude of benefits including providing permanent residence in the United States, allows a permanent resident to have flexibility in travel, and provide a path to citizenship.

Also, as I mentioned previously, an EB-3 visa holder can apply for their spouse and children (unmarried and under 21 years of age) to obtain permanent residence visas as well.

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 5: What are typical processing times for an EB-3 Visa?

Attorney Answer – Question 5:

Processing times can vary depending on a variety of factors including, the time of year you are submitting your application, what country you are applying from, and if you have applied for premium processing.

An application may take from a few months up to 4 years. Additionally, if considering the timeline of an EB-3 visa, you must remember that the employer has to obtain a labor certification which will take time since it needs to be approved by the U.S. Department of Labor. Aspiring immigrants who desire to live and work in the United States should keep looking up and not be discouraged by the process; the EB-3 Visa is a permanent visa that creates a clear path to U.S. citizenship for qualified foreigners desiring to immigrate to the U.S.

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 6: Attorney, you mentioned premium processing. What is premium processing and is it available for EB-3 Visas?

Attorney Answer – Question 6:

Well Alexis, Premium processing allows for expedited processing of your EB-3 visa for an additional fee.

Premium processing is currently available for EB-3 Visas. The current fee for premium processing is $2,500 and it allows you to request faster processing for your I-140 petition. USCIS states that in requesting premium processing they estimate that your petition will be processed in about 15 calendar days. This fee is in addition to the filing fee for your I-140 petition.

INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Attorney, my final question –

Question 7: Are there any annual caps or limits on EB-3 Visas?

Attorney Answer – Question 7:

In fact, there is an annual limit on EB-3 visas.

USCIS allocates a total of 40,040 visas each year in this category. Once this number is met, any remaining petitions are put aside until the next fiscal year. Processing times can be affected by this yearly cap which is why if you are thinking of applying for an EB-3 Visa, this is something to consider early on in the process.

Interviewer Wrap-Up

Attorney, thank you for this clear and very important presentation on the process and benefits of an EB-3 Visa. Many American business owners looking for skilled workers, professionals and even unskilled workers are likely to find this information very useful. For now, thanks for sitting with me today and answering my questions concerning what we think our listeners should know and consider when obtaining an EB-3 Visa.

English callers: 214-599-0431 | Spanish callers: 214-599-0432 |Portuguese callers: 214-272-3100

Attorney Closing Remarks

This is the end of today’s Legal Thoughts!

Thank you all for giving us the opportunity to inform you about: “How to obtain an EB-3 Visa?”

Stay tuned! We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care.

EB-3 Visa For Skilled Workers, Unskilled Workers and Professional Workers

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By: Coleman Jackson, Attorney
Date: October 11, 2022

ELEGIBILITY
SKILLED WORKERS	PROFESSIONALS	UNSKILLED WORKERS
Worker must have 2 years of job experience or training	Worker must have US bachelor’s degree (or its foreign degree) related to the occupation	Worker must be able to perform unskilled labor (less than 2 years of training or experience)
Not temporary	Qualified workers are not available in USA	Not temporary
Post-secondary education may be considered as training	Labor certification	Qualified workers are not available in USA
Qualified workers are not available in USA	Full-time job offer	Labor certification
Labor certification		Full-time job offer
Full-time job offer

EB-3 Skilled workers, entry-level professionals and unskilled workers visa is the third preference business visa as described in Immigration and Nationality Act (INA). Employers who desire to bring foreign workers to the United States under this category of visa must first obtain a labor certification from the United States Department of Labor (DOL) stating that they cannot find any qualified, willing and able U.S. citizens or green card holders to do the job. The second step an employer must take is to file Form I-140 with United States Citizenship & Immigration Services (USCIS) if the labor certification is approved. Employers bringing in professional nurses and physical therapist are exempt from obtaining DOL labor certification.

Finally, the third step a sponsoring employer must take: Upon approval of the preliminary petition by USCIS, the employer must notify the intending worker to apply for an EB-3 visa at the counselor’s office or, in the event the intended worker is already lawfully inside the United States and is eligible to adjust status, the worker must file Form I-485 to adjust status to permanent resident of the United States. The EB-3 visa is a permanent visa and can ultimately lead to naturalization.

Step by Step to EB-3 Skilled Worker, Professional and Unskilled Worker’s Visa

Step 1. OBTAIN THE PERMANENT LABOR CERTIFICATION:

This certification allows the employer to hire a foreign worker to work permanently in the United States. The Department of Labor must certify to USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

APPLICATION FOR PERMANENT EMPLOYMENT CERTIFICATION is filed with the U.S. Department of Labor on – ETA Form 9089
Approval validity is 180 days
Denied certification means You are done. You cannot lawfully hire the worker(s).

Exception to DOL Labor Certification:

SCHEDULE A OCCUPATIONS (DOL has pre-certified the following occupations, which means that the certification form is sent to USCIS rather than to DOL.)

Group I – physical therapists and professional nurses; and
Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.

Step 2. FILE A PRELIIMINARY PETITION FOR PERMANENT FOREIGN WORKER WITH USCIS:

Employer Due Diligence: Obtain competent counsel, if you have not already done so since legal matters are rarely as simple as they may seem. This blog is written in simple terms to attempt to communicate to a broad audience.

Read the instructions for Form I-140, Immigrant Petition for Alien Workers;
Obtain an approved Application for Permanent Labor Certification from the U.S. Department of Labor (DOL), if required for the specific visa category;
Complete and sign Form I-140;
Pay the filing fee, if applicable;
Provide all required evidence and supporting documentation; and

File all appropriate forms and evidence with the appropriate office of USCIS. Currently, the regular USCIS filing fee for Form I-140 is $700 and the current premium processing fee is $2,500.

Step 3. WAIT PATIENTLY FOR PROCESSING:

CATEGORY AND PROCESSING TIMES

CATEGORY AND PROCESSING TIMES
CATEGORY	NEBRASKA	TEXAS
Schedule A Nurses	14 months	14 months
Skilled Worker (E31)	17 months	17.5 months
Professional Workers (E32)	17 months	17.5 months
Unskilled Worker or Other Worker (EW3)	12.5 months	17 months

Note: USCIS processing times varies and may be more or less than these processing times for the EB-3 Visa currently. There are many factors that could impact processing times and therefore work force and company overall human resource planning is required.

Finally, EB-3 workers may separately file petitions for their spouse and children who are under 21 years of age and unmarried. Their children can enroll in American schools and their spouse can apply for a work permit.

The main thing to see here is that although the EB-3 skilled worker, professional and unskilled worker’s visa may take awhile to get, it is a clear path to see opportunities for hardworking foreign workers ranging from those working in the professions to those with some skills to those working on jobs that require little to know formal schooling and training at all. All can begin again and make new lives in the United States since this visa leads to permanent residency.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

How to lawfully hire temporary non-agricultural workers on a H-2B Visa? | Legal Thoughts

Coleman Jackson, P.C. | Transcript of Legal Thoughts
Published October 5, 2022

Overview:

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation, and immigration legal matters.

This episode of Legal Thought is a podcast where the Attorney, Coleman Jackson is being interviewed by Gladys Marcos, Immigration Legal Intern at Coleman Jackson, P.C. The topic of discussion is “How to lawfully hire temporary non-agricultural workers on a H-2B Visa?”

You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal thoughts podcast on Apple Podcasts, Google Podcast, Spotify, or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY: Coleman Jackson

Legal Thoughts. Coleman Jackson, Attorney and Counselor at Law

“How to lawfully hire temporary non-agricultural workers on a H-2B Visa”

Welcome to Immigration Thoughts

My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.

Our topic today is: “How to lawfully hire temporary non-agricultural workers on an H2-B visa? Other members of Coleman Jackson, P.C. are Johanna Powell, Tax Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant, Alexis Brewer, Tax Legal Assistant, and Gladys Marcos, Immigration Legal Assistant.

On this “Legal Thoughts” podcast our immigration legal assistant, Gladys Marcos will be asking the questions and I will be responding to her questions on this important immigration topic, “How to lawfully hire temporary non-agricultural workers on an H-2B Visa?”

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Hello everyone. My name is Gladys Marcos and I am the immigration legal assistant at Coleman Jackson, P.C. Coleman, P.C. is a taxation, litigation and immigration law firm based right here in Dallas, Texas.

My first question for you attorney is with the U.S. in constant need of workers, is there any immigration program that allows U.S. employers or U.S. agents to bring foreign nationals into the United States to temporarily fill non-agricultural positions.

ATTORNEY: Coleman Jackson

Good morning Gladys

Yes, the H-2B program allows United States employers to fill temporary non-agricultural jobs by filing Form I-129 with USCIS. Non-agricultural jobs include, but are not limited to, the following job categories: construction, landscaping, waiters, waitresses and cooks, retail store clerks, inventory stockers and cashiers, cleaning, repairs, pest control, debris removal, maintenance, hospitality, and similar unskilled labor occupations.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Okay and how does an employer determine whether they are eligible to participate in the H2-B Temporary Non-Agricultural Worker’s Visa?

ATTORNEY: Coleman Jackson

An employer must demonstrate to the Department of Labor (DOL) with credible evidence that:

There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;

Hiring H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and

That the need for foreign workers is temporary. Temporary is measured in the terms of: (1) a one -time occurrence; (2) a seasonable need; (3) a peak load need; or (4) an intermittent need

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Thank you for sharing the eligibility criteria. My next question is what are the steps a U.S. employer must take to petition to bring in foreign nationals under the H2-B temporary Non-Agricultural Workers Visa?

ATTORNEY: Coleman Jackson

There are three steps that an employer must take to apply an H-2B Visa:

Step 1: Submit a temporary labor certificate application to the DOL

Step 2: Submit a Form I-129 to USCIS

Step 3: Upon receiving an approval notice from USCIS, the employer must notify the prospective worker to apply for an H2-B, non-agricultural visa at the U.S. embassy in their home country

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

And who eligible to receive a H-2B non-agricultural worker’s visa?

ATTORNEY: Coleman Jackson

That is an excellent question, Gladys. Not every country is eligible to participate in the H-2B non-agricultural visa program. Let me explain, every year, the Department of Homeland Security updates the lost of eligible H2-B visa countries. Employers seeking to hire H2-B unskilled workers in their establishment must review this DHS list to determine which foreign nationals are currently eligible to participate in the H2-B Non-Agricultural Visa Program.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Okay and can workers who are already in the United States receive a H-2B Non-Agricultural Workers Visa?

ATTORNEY: Coleman Jackson

If the foreign national is in the U.S. on a non-immigrant employment visa, and a U.S. employer desires to hire the foreign national on a H2-B agriculturalist workers visa, the employer must file Form I-129, Petition for a Non-immigrant Worker.

Once the I-129 is approved, the employee must file a form I-539 that means that a foreign national must file a I-539 Non-immigrant Change of Status Application to change their non-immigrant visas.

Per DHS’s March 2021 announcement (pandemic related): Employers will also be able to hire workers who are already lawfully present in the United States in H-2B status without waiting for approval of the new petition, subject to certain conditions that we won’t go into in this particular podcast. We often go into much more detail on topics discussed in our law firm’s blogs; which can be found on our website at www.cjacksonlaw.com. Our blogs are free of charge.

Finally, if the foreign national is in the U.S. without documents, they cannot be hired as an H2-B non-agricultural worker, nor can foreign nationals who are here on student visas be hired by an American employer under the H2-B Visa Program. Employers cannot hire individuals here on visitor visas or here on a visa waiver program as an H2-B Non-agricultural Visa. These visa categories that I just mentioned cannot be changed to an H2-B non-agricultural worker visa.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

How long can H-2B workers stay in the United States. Additionally, are they able to bring their families?

ATTORNEY: Coleman Jackson

Once a worker has been granted an H-2B visa they can remain in the United States for 3 years. When their H-2B Visa expires it cannot be extended or used to change status. During these 3 years, they can bring their spouse and children with them. Reminder: immigration law considers a person a child if they are unmarried and under 21 years of age.)

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

How is obtaining workers through the H2-B Visa program better than hiring workers as independent contractors?

ATTORNEY: Coleman Jackson

This is a very interesting and complex question, but only theoretically because in practice federal and state labor laws are extremely clear on this subject. So let me first of all say that federal and state law define whether a worker is an employee or an independent contractor. Whether a worker is properly classified as an employee or independent contractor does not depend on what the parties call the worker. In both federal labor law and Texas labor law, the critical question is whether the worker is under the direction and control of the employer. This is commonly referred to as the ‘direction and control’ test or common law test. In both federal law and Texas law the test consist of about 20 factors. I will not go into further details, but the significant point that I am making is that workers must be classified in accordance with the law. Classification of workers as employees or independent contractors is not a decision left to an employer.

The second point I would like to make at this time is this one:

Employers have federal tax filing requirements, deposit requirements and withholding requirements for all workers classified as employees. Employers must withhold income taxes from each payment paid to the worker, they must timely deposit withheld funds to the IRS, generally using the EFTPS payment system, and the employer must file timely Form 941 (quarterly payroll tax form) and Form 940 (annual payroll tax form) with the IRS. Employers must also give employees Form W2 by its due date, and they must file W4 transmittal documents with the Social Security Administration each year. Moreover all employers must complete and maintain Form I-9 within days of hiring a new worker as an employee where they identify the worker and review the workers eligibility to work lawfully in the United States. Completed Form I-9 must be kept by the employer and are subject to request for examination by the federal government. There can be severe civil penalties accessed for failure to withhold federal taxes, failure to deposit federal payroll taxes, and failure to file required tax returns. Likewise severe penalties can be accessed for misclassification of workers.

As for employer’s responsibilities in Texas; Texas employers must register with the Texas Work Force Commission. They must file quarterly Unemployment Tax Reports with the TWC and they must otherwise comply with the Texas Labor Code as it relates to employing workers in Texas. I might note that TWC periodically perform audit examinations in search for misclassification of workers by employers in Texas. There can be steep cost for misclassification of workers in Texas.

Employers properly classifying workers as independent contractors are not responsible for their tax liabilities or their tax reporting. Employers give the independent contractor a Form 1099 at the end of each year. Employers do not have to report payments to independent contractors to the TWC or any other state or local agency within the state of Texas.

So to summarize my first point: classification of workers is not a decision employers get to pick out of thin air by simply choosing to classified their workers as employees or independent contractors depending upon whether or not the classification makes them more or less competitive in their marketplace or industry. As I previously mentioned in awhile ago, misclassification of workers can catch up with you and have severe federal and state consequences if you get caught. Intentional misclassifications of workers and intentionally hiring workers who are not authorized to work in the United States could expose the organization and individual decision makers within the violating companies in serious legal jeopardy, including criminal prosecution.

My second point is that hiring unskilled workers in the H2-B program is lawful whereas hiring workers who are not authorized to work in the United States is a violation of I-9 rules and could subject violators to ICE investigations and examinations; and sometimes repeating what has already been said previous might be clarifying. Like this point; misclassification of workers could have significant federal tax consequences, such as, denial of labor cost during an IRS examination, or huge tax adjustments by TWC examiners during Texas Workforce Commission audits of the employer. Under some circumstances the IRS and/or TWC could refer the offending employer to each other and/or for prosecution on tax fraud, tax evasion or similar federal and state crimes.

So to summarize in a nutshell my answer to your question number 5 is this: the H2-B non-agricultural workers program can be used to lawfully hire workers in non-agricultural jobs in America. It’s a way of hiring the workers you need to successfully operate your business within the bounds of federal and state law. Law breakers are responsible for their actions and should be held accountable.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Thank you for that insight. My last question is this one: Are there any other things an employer should consider when thinking of using the H2B Visa Program?

ATTORNEY: Coleman Jackson

Well I cannot begin to think of everything any particular employer should think of when hiring or considering hiring foreign workers under the H2-B Non-Agricultural Workers Program because it depends on all the facts and circumstances that is not knowable to me right now. Employers would need to ask precise questions pertaining to them individually.

With that said, let me just say yes employers do need to know this point in any regardless of what their particular facts or circumstances might be: the USCIS sets a limit on how many H-2B visas available each fiscal year (October 1-September 30). The USCIS has recently increased this cap to meet the needs of the H-2B program, but even still, there are more employers applying for workers under the H2-B visa program than visas available each year.

Its important to keep processing times front of mind whenever you are considering filing an I-129 to hire H-2B workers. Plan well ahead of when you will actually need these temporary workers.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Attorney thank you for this clear and very important presentation on the H2-B temporary non-agricultural worker visa. Many American business owners looking for unskilled laborers and foreign nationals interested in coming to the United States to work temporarily are likely to find this information useful. For now, thanks for sitting with me today and answering my questions concerning how U.S. employers can lawfully hire temporary non-agricultural workers on a H-2B non-agricultural workers visa.

Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or where ever they listen to their podcast. Everybody take care! And come back in about two weeks, for more taxation, litigation and immigration Legal Thoughts Podcast from Coleman Jackson, P.C., which is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620, Dallas, Texas 75206.

English callers: 214-599-0431 | Spanish callers: 214-599-0432 |Portuguese callers: 214-272-3100

ATTORNEY: Coleman Jackson

This is the end of Legal Thoughts for now.

Thanks for giving us the opportunity to inform you about : “How to lawfully hire temporary non-agricultural workers on an H-2B Visa?”

If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tune! Watch for a new Legal Thoughts Podcast in about two weeks. We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care

How to hire temporary agricultural workers on a H2A Agricultural Workers Visa | Legal Thoughts

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Coleman Jackson, P.C. | Transcript of Legal Thoughts
Published July 11, 2022

This episode of Legal Thoughts is an audiocast where the Attorney, Coleman Jackson is being interviewed Gladys Marcos, Immigration Law Assistant. The topic of discussion is “How to hire temporary agricultural workers on a H2A Agricultural Workers Visa”.

You can listen to this podcast by clicking here:

TRANSCRIPT:

ATTORNEY: Coleman Jackson

LEGAL THOUGHTS

COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY: Coleman Jackson

Welcome to Legal Thoughts

My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation and immigration law firm based in Dallas, Texas.

Our topic for today is: “How to hire temporary agricultural workers on a H-2A Agricultural Workers Visa?”

Other members of Coleman Jackson, P.C. are Johana Powell, Tax Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant, Gladys Marcos, Immigration Legal Assistant and Gladys Marcos, Immigration Legal Assistant.

On this “Legal Thoughts” podcast our immigration legal assistant, Gladys Marcos will be asking the questions and I will be responding to her questions on this important immigration topic: “How to hire temporary agricultural workers on a H-2A Agricultural Workers Visa?”

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Good morning everyone. My name is Gladys Marcos and I am the immigration legal assistant at Coleman Jackson, P.C. Coleman Jackson, P.C. is a taxation, litigation and immigration law firm based right here in Dallas, Texas.

Our first question for you Attorney, is it is widely reported that there is a shortage of agricultural workers in United States, is there any immigration program that allows U.S. Employers or U.S. agents to bring foreign nationals to fill temporary agricultural jobs?

Attorney Answer – Question 1:

Good morning Gladys.

Yes, Section H-2A of the Immigration and Nationality Act (INA) permits U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs, but employers must meet specific statutory requirements to hire H-2A agricultural workers.

INTERVIEWER: Gladys Marcos, Immigration Legal

Our second question is who can qualify for the H2-A Agricultural Workers Visa?

Attorney Answer – Question 2:

the employer who is the petitioner must offer a job that is of a temporary or seasonal nature; demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and generally submit a single valid temporary labor certification issued by the U.S. Department of Labor with their H-2A Visa petition.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

And how does an employer determine whether or not they are eligible to participate in the H-2A Agricultural Workers Visa program?

Attorney Answer – Question 3:

Excellent question Gladys:

Detailed guidelines for employers are on the Department of Labor’s website. An employer should ask themselves the following questions:
1. Does our U.S. business involve agriculture, or is our organization an association of agricultural producers?
2. Do we have full-time work that needs to be performed on a temporary or seasonal basis?
3. Are we located in the United States?
4. Do we possess a valid Federal Employer Identification Number issued to us by the United States Department of Treasury?
5. Do we have the ability to hire, pay, fire, supervise, or control the H2-A agricultural workers that we intend to hire in our business?
6. Are we intending to use these H2-A agricultural workers in agricultural labor or services such as planting, raising, cultivating, harvesting, or production of agricultural or horticultural commodities?
7. Are we going to hire these H2-A agricultural workers full time (35 hours per week minimum is considered full time under DOL policies)?
8. Will we hire these H2-A workers on a seasonal or temporary basis?

U.S. employers must answer questions 1 through 8 in the affirmative. If the answer to any of the above questions are ‘NO’, then, the U.S. Employer is not eligible to participate in the H-2A Agricultural Workers Visa Program.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Okay and what is the steps that U.S. employers must take to petition for foreign nationals under the H2-A Agricultural Workers Visa Program?

Attorney Answer – Question 4:

The H2-A Agricultural Workers Visa process consists of 3 steps as follows:

First Step: The U.S. employer must file a temporary labor certification application with the U.S. Department of Labor;
Second Step: The petitioner must submit the immigration petition Form I-129 with the USCIS along with the Labor Certification received from the U.S. Department of Labor in Step 1; and
Third Step: Upon receipt of USCIS Approval Notice of Form I-129; the U.S. employer of the approved Form I-129 must notify the beneficiary (prospective agricultural worker) of the approved Form I-129. The beneficiary must apply for the H2-A agricultural workers visa and seek admission to the United States at the U.S. Consulates Office in their country.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Are nationals from all countries of the world permitted to come to the United States under the H2-A agricultural workers visa program?

Attorney Answer – Question 5:

No, nationals permitted to come to the United States under the H2-A agricultural workers visa program are published by the U.S. Department of Homeland Security. This publication is valid for one year after publication. U.S. employers are permitted to petition for nationals from countries listed on the then current DHS publication.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

Attorney, you mentioned that the H2-A agricultural workers visa is of a temporary nature; so, for how long, can foreign workers stay in the United States after they enter as H2-A agricultural workers?

Attorney Answer – Question 6:

U.S. employers hiring H2-A agricultural workers and nationals coming on the H2-A agricultural workers visa must understand the temporary nature of this visa and consider the following points that I would like to make right now:

The term of the H2-A agricultural workers visa depends on the period of time authorized by the Department of Labor on the temporary labor certification.
The H2-A agricultural worker visa classification can be extended for qualifying employment incrementally for of up to 1 year each.
A new, valid temporary labor certification covering the requested time must accompany each extension request.
The maximum period of stay in the H2-A agricultural workers visa classification is 3 years.
Nationals who have been in the United States as H-2A agricultural workers for a total of 3 years must depart the United States and remain outside of the United States for an uninterrupted period of 3 months before seeking readmission under the H2-A agricultural workers program.

INTERVIEWER: Gladys Marcos, Immigration Legal Assistant

If a foreign national is admitted under the H2-A agricultural workers visa program, are they allowed to bring their family to the United States?

Attorney Answer – Question 7:

An H-2A worker is allowed to bring their spouse and unmarried children (under 21 years old and unmarried) on the classification H4. However, these family members are not eligible for employment in the United States under the H4 classification.

Interviewer Wrap-Up

Attorney thank you for this clear and very important presentation on the H2-A agricultural workers visa. Many American farmers and ranchers looking for laborers and foreign nationals interested in coming to the United States to work in the agricultural field are likely to find this information useful. For now, thanks for sitting with me and answering my questions today concerning how agricultural workers can work temporarily in the United States!

To our listeners who want to hear more podcast like this one please subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or where ever you listen to your podcast. Everyone take care! And come back in about two weeks, for more taxation, litigation and immigration Legal Thoughts from Coleman Jackson, P.C., located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620, Dallas, Texas 75206.

English callers: 214-599-0431 | Spanish callers: 214-599-0432 |Portuguese callers: 214-272-3100

Attorney Closing Remarks

THIS IS THE END OF “LEGAL THOUGHTS” FOR NOW

Thanks for giving us the opportunity to inform you about : “How to hire temporary agricultural workers on a H-2A Agricultural Workers Visa?”

If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tune! Watch for a new Legal Thoughts podcast in about two weeks. We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care.

Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States | LEGAL THOUGHTS

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Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published May 10,2021.

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Reyna Munoz, Immigration Legal Assistant of Coleman Jackson, P.C. The topic of discussion is “Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States”. You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY: Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY: Coleman Jackson

Welcome to Immigration Thoughts

My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, immigration law firm based in Dallas, Texas.
Our topic for today is: Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States. Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant and Mayra Torres, Public Relations Associate.
On this “Legal Thoughts” podcast our immigration legal assistant, Reyna Munoz, will be asking the questions and I will be providing the answers to the questions on this very important immigration topic: Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States.

Interviewer: Reyna Munoz, Immigration Legal Assistant

Good morning attorney. Thank you for joining me today to talk about this incredibly important topic that our listeners will be learning about today.

Question 1:

Attorney, what is the Real ID Act of 2005 and why is it so important today?

Attorney Answers Question 1:

Good morning, Reyna. The Real ID act was passed by Congress in 2005 after the tragic terrorist attacks of 9/11/2001. The Real ID Act of 2005 “sets minimum security for license issuance and production and it prohibits federal agencies from accepting documents such as driver’s licenses and identification cards that do not meet the act’s minimum standards.” This is why when you go to the airport you will see a lot of signs that state that your driver’s license must be Real ID compliant. Real ID driver’s licenses usually have a star on the top right of the document. These ID’s are built with new technology and require a lot more paperwork from the applicant to prove their residency and their social security number. Why is the Real ID Act of 2005 relevant today? The Act is very important, and it is certainly relevant today because EVERY STATE WITHIN THE UNITED STATES MUST Be Real ID compliant by October 1, 2021. Those using driver’s licenses and identification cards issued by non-compliant States could be hindered from flying on airplanes, riding on trains and buses within the United States. They could also be hindered or prevented from accessing federal buildings and potentially prevented from exercising other rights that they otherwise would have where a license or identification card is required. Perhaps many people don’t realize this; but, the driver’s license in their pocket or purse right now could already be Real ID compliant because many States have been issuing Real ID compliant driver’s licenses and other ID Cards for years now in compliance with the Real ID Act of 2005.
Reyna, the reasons that I have just listed are just some of the reasons why the Real ID Act of 2005 is relevant in 2021 and beyond. People who have licenses that are not compliant on October 1, 2021 could be hindered and possibly prohibited from doing a lot of things that people simply take for granted now. People need to pull out their driver’s license to see whether it is Real ID compliant.

Interviewer: Reyna Munoz, Immigration Legal Assistant

Attorney, I now clearly understand why the Real ID Act of 2005 is so important. Everyone needs to have a Real ID Act compliant driver’s license or ID card in their possession by October 1, 2021!

Question 2:

Does this mean that if people do not have a Real ID compliant document, they won’t be able to use their identification document anymore?

Attorney Answers Question 2:

No, not necessarily. The two words to pay attention to here is “not necessarily”. I mean, who wants the hassle when they simply are engaging in everyday life activities. I mean; they may get unnecessary questions and delays doing such things as traveling to see their extended family within the U.S. on a busy holiday. They are stuck in some airport confirming their identity before they can get through airport security. They could miss their flight. This is merely a hypothetical of some inconvenience that could potentially occur from using non-compliant driver’s licenses after October 1, 2021. But let me be clear here; for now, people will still be able to use their non-compliant real ID document to drive and vote. Many States are looking at State election laws right now and possibly Real ID compliant identification documents would be required to Vote by some State legislatures. That is something to watch out for as the dust settles regarding these attempts to restrict voting by change or modification of election laws around the country.
Note that a REAL ID driver’s license or ID card cannot be used for international travel. Official Passports lawfully issued to the person by the U.S. Government or other appropriate government is required to travel internationally to anywhere in the world. However, beginning October 1, 2021, when it comes to domestic travel, people will need to provide other documents if they do not have a Real ID driver’s license or ID Card; such as:
- A valid U.S. passport
- Permanent Resident card
- Border crossing card
- Federally recognized tribal issued photo
- USCIS Employment Authorization card
Again, the basic concern people should have when using a non-compliant driver’s license after October 1, 2021 is the real possibility of hassle and delays while officials or merchants or whoever conducts some form of inquiry or investigation trying to determine their real identity.

Interviewer: Reyna Munoz, Immigration Legal Assistant

I hear you, attorney; who needs the hassle; life is full of stress and strain as it is. Who need unnecessary disruption and drama created from using a non-compliant driver’s license? But it’s good to see that people will still have other options to prove their real identity when it comes to domestic travel within the United States.

Question 3:

So tell me attorney, what categories of immigrants in the United States qualify to obtain a REAL ID driver’s license or State issued ID?

Attorney Answers Question 3:

Reyna, the following categories of immigrants in the U.S. are eligible to apply for a REAL ID driver’s license or ID card at their local Department of Motor Vehicles, (DMV):
1. Immigrants who are currently United States Lawful Permanent Residents or Green Card Holders
2. Immigrants who have a pending application for adjustment of status to lawful permanent resident
3. Immigrants who are currently hold the status of temporary resident of the United States
4. Immigrants who have conditional permanent resident status such as valid work permit in the U.S.
5. Immigrants who have an approved asylum application
6. Immigrants who have a valid unexpired nonimmigrant visa, such as, an F-1 Student Visa
7. Immigrants who have a pending asylum application
8. Immigrants who have a pending Temporary Protective Status Application or approved TPS
9. Immigrants who have an approved deferred action status, such as Deferred Action of Childhood Arrival or DACA
Note that State and Local laws and regulations could be a factor as to who is eligible to apply for a driver’s license or ID Card. These State rules could potentially modify or even exclude immigrants from this eligibility for Real ID card list.

Interviewer: Reyna Munoz, Immigration Legal Assistant

Thank you very much for this thorough presentation of those immigrants who are potentially eligible for Real ID.

Question 4:

So how will REAL ID impact undocumented immigrants who live in states that issue them a state ID, but don’t meet any of the categories you just mentioned?

Attorney Answers Question 4:

Well Reyna, the Department of Homeland Security, DHS has stated in several announcements that some States issue noncompliant cards to undocumented people. If that is so; DHS requires that those non-compliant driver’s licenses and ID cards clearly state that the ID card is not acceptable for REAL ID purpose. These non-compliant driver’s licenses have a unique design or color to differentiate them from Real ID compliant driver’s licenses and ID cards.
DHS has also made it clear, however, that just because an individual carries a noncompliant identification card or driver’s license does not mean that anyone should that the holder of this unique, stand out type card is undocumented.
A critical point that people should be aware is this one: Issuance of licenses to individuals are a matter of State law and not federal law. States have the right to set their own standards, rules, and regulations eligibility for issuance of driver’s licenses and other licenses within their State. Eligibility standards and application requirements are different from State to State. For example, in California, undocumented immigrants are eligible to apply for a REAL ID compliant driver’s license or ID card in that State; however, undocumented people in Texas are not eligible to receive a Real ID compliant driver’s license or any other identification card. People residing in Texas should check with the Texas Department of Motor Vehicle to learn the requirements for issuance of identification licensure within the State.

Interviewer: Reyna Munoz, Immigration Legal Assistant

Okay, attorney, this has been very informative. You have made it crystal clear that issuance of driver’s licenses and identification documents are determined by State laws and regulations and not federal laws. Licensure rules vary from State to State. Eligibility requirements are different in each State. It just depends upon where the immigrant resides within the United States as to whether they can obtain a Real ID complaint driver’s license or other identification. In Texas, check with the Department of Motor Vehicle for driver’s licensing eligibility requirements and procedures.
Some of the listeners of our Legal Thoughts Podcast reside in other States and even overseas. I have noticed.

Question 5:

Attorney, where can immigrants and others find more information on REAL ID in their own specific State since a lot of our listeners are not from Texas?

Attorney Answers Question 5:

Individuals who desire to learn more about REAL ID in regard to their own State, should visit: dhs.gov/real-id
This is a very user-friendly site with plenty of information readily available to anyone with an internet connection. Furthermore, the site has webpages explaining these REAL ID issues in Spanish, French, Chinese, Vietnamese, and Tagalog.

Reyna Munoz’s Concluding Remarks:

Thank you for sharing this website, attorney. Potentially many people could find all of this information incredibly timely and helpful since States must comply with the READ ID Act of 2005 and become compliant by October 1, 2021. Those are all my questions for now in regard to the REAL ID Act of 2005. Thank you for taking the time to discuss this important topic.
Attorney, thank you for the detailed information on Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts everyone in America; including, undocumented immigrants and other immigrants residing in the United States. Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast for more taxation, government contract law, litigation and immigration Legal Thoughts podcasts. Everybody take care! Read our taxation, government contract litigation and immigration law firm’s blogs at www.cjacksonlaw.com. Coleman Jackson, P.C., is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620 Dallas, Texas 75206.
English callers: 214-599-0431 | Spanish callers: 214-599-0432. Portuguese callers: 214-272-3100.

Attorney’s Concluding Remarks:

THIS IS THE END OF “LEGAL THOUGHTS” FOR NOW

Thanks for giving us the opportunity to inform you about Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States. If you want to see or hear more taxation, government contract litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tuned! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, government contract litigation and immigration. Until next time, take care.

Overview of the TN Nonimmigrant Visa | How Does the TN Visa for Canadians Differ from the TN Visa for Mexicans?

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By: Coleman Jackson, Attorney and Certified Public Accountant
May 20, 2021

A TN Visa, also known as the nonimmigrant NAFTA Professional visa, is designed for professional workers from Canada and Mexico. This visa was created by the North American Free Trade Agreement (NAFTA) for special economic and trade relationships that between the United States, Canada, and Mexico. The TN visa is a temporary visa, this means that the person applying for it has no intention to permanently reside in the United States and must notify appropriate U.S. immigration officials that their work will have a termination date and that they will depart the United States when their work is done. It should be stressed that a person with a TN visa may apply for unlimited renewals that are granted in increments of three-year periods.

On July 1, 2020, the United States-Mexico-Canada Agreement (USCMCA) took effect thus replacing the North American Free Trade Agreement, however this change has not changed the TN-Visa provisions under old NAFTA.

Who is eligible to apply for the TN Visa?

Those that are eligible to apply for a TN visa must be citizens of Mexico or Canada that seek to apply for temporary entry into the United States to engage in business activities at a professional level. To perform a business activity at a professional level means that the person must have, at a minimum, a bachelor’s degree or appropriate credentials that demonstrates that the intending TN visa recipient’s status as a professional. The intending TN visa immigrant must be engaged in a trade or business of trading goods, services, or investment activities performed inside the of the United States. The following categories of licensed professions who are citizens of Canada and Mexico are eligible to apply for the TN Visa:

Accountant
Architect
Computer Systems Analyst
Disaster Relief Insurance Claims Adjuster
Economist
Engineer
Forester
Graphic Designer
Hotel Manager
Industrial Designer
Interior Designer
Land Surveyor
Landscape Architect
Lawyer
Librarian
Management Consultant
Mathematician
Range Manager/Range Conservationist
Research Assistant
Scientific Technician/Technologist
Social Worker
Silviculturist
Technical Publications Writer
Urban Planner
Vocational Counselor
Medical/Allied Professionals
Dentist
Dietician
Medical Laboratory Technologist/Medical Technologist
Nutritionist
Occupational Therapist
Pharmacist
Physician
Physiotherapist/Physical Therapist
Psychologist
Recreational Therapist
Registered Nurse
Veterinarian
Agriculturist
Animal Breeder
Animal Scientist
Apiculturist
Astronomer
Biochemist
Biologist
Chemist
Dairy Scientist
Entomologist
Epidemiologist
Geneticist
Geochemist
Geologist
Geophysicist
Horticulturalist
Meteorologist
Pharmacologist
Physicist
Plant Breeder
Poultry Scientist
Soil Scientist
Zoologist
College, Seminary, or University Teacher

TN Visa for Canadian Citizens

Canadian citizens applying for a TN visa that meet one of the professions listed above and is traveling to the United States for temporary business purposes has to complete the application for admission with a U.S. officer at a United States port of entry, such as an airport, where they must prove their Canadian citizenship by providing a valid passport. During this step the applicant also has to prove enough to satisfactorily satisfy the U.S. border officer that the TN visa applicant is seeking entry to engage in business at a professional level. The person can expect to present evidence such as documents from the prospective employer, degrees earned from credible institutions of higher education, anticipated length of stay and summary of job duties. If the Canadian citizen is traveling with their spouse or dependents, these relatives will not be required to have a visa, but they must prove their Canadian citizenship and prove their relationship with the TN nonimmigrant. The spouse or dependent will have to apply for admission at a United States port of entry. Like everyone else who comes to the U.S. border, they are seeking admission to enter.

TN visa for Mexican Citizens

Mexican citizens who are applying for a TN visa will also have to prove their Mexican citizenship which can be proved with a valid passport. However, the process is different than the steps that Canadian nationals have to take. Citizens of Mexico will have to schedule an appointment with the United States Consulate in Mexico and provide the proper documentation to satisfy the consular officer. Mexican citizens who are a spouse or dependents of a TN nonimmigrant holder will need a visa, unlike Canadian citizens.

Extension of Stay for Mexican and Canadian Citizens

Both Mexican and Canadian citizens under certain conditions can apply for an extension of stay in the United States. The first condition is that the individual must apply with the USCIS and pay the correct fee to request a stay extension. Second, the person must be in the United States under the TN nonimmigrant visa status, if the person is not in the United States, then they can request that USCIS notify the their consular’s home office. If the TN status extension is approved, it can be approved for a maximum of three years.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432| Portuguese (214) 272-3100

Podcast – Why Foreign Investors Consider the EB-5 Visa? | LEGAL THOUGHTS

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Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published October 23, 2020

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Reyna Munoz, Tax Legal Assistant of Coleman Jackson, P.C. The topic of discussion is “Why Foreign Investors Consider the EB-5 Visa?” You can listen to this podcast by clicking here:

TRANSCRIPT:

ATTORNEY: Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY: Coleman Jackson

Welcome to Immigration Thoughts

My name is Coleman Jackson, and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
Our topic for today is: “Why Foreign Investors Consider the EB-5 Visa?”
Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant and Mayra Torres, Public Relations Associate.
On this “Legal Thoughts” podcast our law firm’s Public Relations Associate, Mayra Torres will be asking the questions and I will be giving the answers as she and I will be discussing: “Why Foreign Investors Consider the EB-5 Visa?”

Reyna Munoz Introduces Herself to the Audience:

Hi everyone, I am Reyna. I the Tax Legal Assistant at the tax, litigation and immigration law firm of Coleman Jackson, P.C. Right here in Dallas, Texas.
Hi Attorney; today we will be discussing the EB-5 Foreign Investor’s Visa:
- Its history;
- Its application process, procedure, and processing times; and
- its advantages to the foreign investor in coming to the U.S. to start a business and bring their families to live and work in the United States permanently.

Question 1:

Attorney could you give a brief history and description of the EB-5 Investor’s Visa?

Attorney Answers Question 1:

Good morning Reyna. Thanks for your question.
EB-5 Investor Visa is the fifth employment-based preference visa enacted into U.S. Immigration Law in 1990 and is codified in 8 U.S.C. That is the Immigration and Nationality Act of the United States. The fundamental purpose of the EB-5 Investor Visa Program stated by Congress when it became law in the 1990s were to grow or spur economic growth within the United States. The fifth employment-based preference visa is designed to afford wealthy foreign investors the opportunity to live and raise their families in the U.S. in return for building a new commercial for-profit enterprise or invest in an existing U.S. for-profit enterprise employing up to ten additional full-time employees. Let me repeat, the EB-5 Investor’s Visa category is aimed at qualified wealthy foreigners seeking to obtain permanent legal residence in the United States, investing in a new for-profit commercial enterprise that will benefit the United States economy and create at least 10 full-time jobs in the United States per investor. The program is currently administered by USCIS. The at-risk capital investment required per EB-5 investor is currently $1.8 million, but the at-risk capital investment amount is reduced to $900,000 if the investment is made in a rural community or high unemployment area, known as a Target Employment Area (TEA). These minimum EB-5 Visa investment amounts came into force in 2019. This in a nutshell is the stated Congressional purpose the fifth employment-based preference visa which is commonly known as the EB-5 foreign investors visa and anecdotally known in some circles as the “Gold Visa”.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 2:

What are the qualifications for obtaining the EB-5 Visa and have there been any significant changes these qualification since Congress enacted the Statute?

Attorney: Coleman Jackson

ANSWER 2:

Yes, absolutely there are very strident criteria that the foreign investor must meet. The immigration statute sets forth strict guidelines as to:
1. What constitutes an at-risk investment,
2. What constitutes a commercial for-profit enterprise,
3. What constitutes employment of full-time employees,
4. What constitutes a capital investment to begin with; and
5. What constitutes a minimum required capital investment.
The Immigration Nationality Act (INA) defines all of these terms in excruciating detail. And yes, there have been changes in the implementation of the Statute since it became law in 1990.

Interviewer: Reyna Munoz, Tax Legal Assistant

Attorney, that sounds a little complex. I hope you can explain some of those technical terms more fully.
Question 3:

But for now, this is my next question:

You mentioned that changes have occurred in the law since 1990. It might be best to describe those changes first; I mean, when did these changes occur, what were the changes to the EB-5 Visa, and what impact did these changes have on the EB-5 Visa program?

Attorney Answers Question 3:

That is very good. Yes, I can talk about the changes to the EB-5 Program before drilling down on some of these technical terms.
On November 21, 2019, the EB-5 Program underwent its first major change since the program began in 1990. In July 2019, the Department of Homeland Security published changes to the EB-5 Investor Visa Program in the Federal Register. The modifications or changes were dubbed the, “EB-5 Modernization Regulations for the Immigrant Investor Program (or the regulations)”. The new regulations increased the minimum investment amount from $1,5 million to $1.8 million and to $900,000 from $500,000 in a TEA designated area. Moreover, the regulations switched the TEA designation authority or designation decision making process from the individual states and gave it exclusively to the United States Citizenship and Immigration Services, (USCIS). The policy aim given for making these regulation changes to the EB-5 implementation regulations was to get back to the true Congressional intent for enacting the immigration statute in the first place; that is, the goal was to grow the U.S. economy and create American jobs through foreign investors investing substantial at-risk capital in return for a clear path to U.S. citizenship. Some thought the program had gotten away from its original Congressional goal.

Interviewer: Reyna Munoz, Tax Legal Assistant

QUESTION Attorney can you now circle back and explain these terms that you mentioned earlier:
1. What constitutes an at-risk investment,
2. What constitutes a commercial for-profit enterprise,
3. What constitutes employment of full-time employees,
4. What constitutes a capital investment to begin with; and
5. What constitutes a minimum required capital investment.
Question 4:

What does these terms mean as they relate to the EB-5 Foreign Investor Visa Program?

Attorney Answers Question 4:

Okay, very well! I will briefly describe each of these terms:
The term commercial for-profit enterprise under the Statute is understood to mean any lawful for-profit business enterprise. The business cannot be a hobby or non-profit enterprise of any kind. The goal of the enterprise must be to make money! The legality of the business enterprise will be determined under federal law and not merely state or local law. For example, some types of business activities could be lawful in a state and unlawful under federal law. For example, a commercial for-profit marijuana enterprise; which is a lawful business enterprise in some States, is currently unlawful under federal law.
The commercial for-profit enterprise is structured under the applicable state law where it organizes in the form of a partnership, or limited liability company, corporation, joint venture; and even, a sole proprietorship. Let me point out here that for tax purposes a corporation owned by none-United States citizens cannot make a Chapter S Corporation election because it’s not permitted under U.S. tax law. But otherwise, the commercial enterprise may be structured under State law in whatever for-profit business structure that suits the foreign investors requirements or goals.
Full-time employments as defined in the EB-5 Visa Statute means is the employment by the enterprise of U.S. workers who are U.S. citizens, Green Card Holders, or workers otherwise authorized to work in the United States. The workers cannot be members of the foreign investors family or otherwise related to the foreign investor. The workers must work at least 35 hours per week to be considered full-time employees. There are certain particulars, such as, temporary, and seasonal workers, and such transient workers that I won’t go into right now.
Basically, what I have briefly described is how the term full-time employment has been interpreted by USCIS adjudicators
I am going to combine my answer to the terms “at risk investment” and “capital investment” together since they are both dealing with the foreign investor’s investment and what it means to make an investment under the EB-5 Visa Statute.
The foreign investor must make a capital investment in the minimum amount required by USCIS. USCIS has implemented rules defining a capital investment as the contribution of-
- cash;
- plant, property and equipment;
- inventory;
- stocks, bonds, and other securities owned by the foreign investor;
- tangible personal property; and
- At risk debt to the foreign investor
This is what is meant by at-risk capital investment. Intangible property, such as, patents, trademarks, knowledge and know-how are not considered capital assets for EB-5 investment purposes.
Let me turn to the last technical term that I originally mentioned; which is ‘required minimum capital investment’ under the EB-5 Statute. What does it mean?
The new regulations that I mentioned before that were implemented by DHS in 2019, increased the minimum investment amount from $1.5 million to $1.8 million and to $900,000 from $500,000 in a TEA designated area. That means each foreign investor must make a minimum at-risk capital investment in these minimum amounts in a new enterprise within the United States which either creates or saves 10 U.S. jobs to qualify for the EB-5 visa.
The required minimum investment must be converted into United States Dollars and valuated at fair market value. It must meet the statutory minimum capital investment thresholds in U.S. dollars after any currency valuations and conversions.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 5:

Attorney can the foreign investor execute a letter of intent to contribute the required minimum capital investment contingent upon approval of the EB-5 application? After all, USCIS might not approve the application.

Attorney: Coleman Jackson

ANSWER 5:

I mentioned before the statute requires that the foreign investor invest at-risk capital into the new enterprise. The investor must go beyond a mere expression of intent to invest the required capital. Actual commitment of the capital is required; for example, indicial needs to be sent to the USCIS that the foreign investor has deposited the monies into a bank account exclusively controlled by the business (this could also be accomplished by putting the money in a trust account on behalf of the business); the foreign investor could also show the USCIS actual commitment of capital to the new business by title transfers of assets into the business for the exclusive use of the business. The idea is that commitment of the capital to the new enterprise must be legally enforceable and either in the ownership and control of the business or a trustee with instructions to turn the money over to the business. The at-risk requirement simply means that the investor must be exposed to a possible lost of the committed capital; there can be any guarantees made by the business to return the capital investment in the event the business stumbles and fails.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 6:

What if the USCIS denies the petition? Can the foreign investor insist return of invested capital if the EB-5 petition is denied?

Attorney: Coleman Jackson

ANSWER 6:

I mentioned that the capital could be placed in the hands of a trustee. If this approach is used the trustee must be a bank or some form of financial institution that is unrelated to either party to the transaction. The terms and conditions of that relationship would be governed by the escrow agreement that the parties entered into. The parties to the escrow agreement could agree to return some or all of the committed capital in the event the EB-5 petition is denied by USCIS. The escrow agreements or other agreements that the investor might execute with other parties in the transaction must all be arms-length and compliant with the EB-5 Statute. Let me just leave it here for now; the investor must strictly comply with the Statute and be aware of how USCIS field adjudicators are instructed in the USCIS Field Manual when evaluating EB-5 visa applications.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 7:

Well okay Attorney; sounds like it’s very technical and requires a lot of due diligence on the part of the foreign investor and all parties involved in the process.
Question 7:

My last question is this! How does a foreign investor actually request an EB-5 visa?

Attorney: Coleman Jackson

ANSWER 7:

The foreign investor files USCIS Form I-526 to request classification under the fifth employment-based preference category. Currently the Form I-526 is filed at the Dallas, Texas USCIS lock box regardless of the actual location of the new commercial enterprise. The USCIS from time to time changes the actual filing location depending upon workload and other factors.
Reyna, thanks for these questions this morning with respect to why foreign investors might want to consider the EB-5 visa. There are many other relevant factors at play with respect to operating a business in the United States that we have not addressed here. In addition to the immigration laws discussed, there are also federal taxation and foreign assets and account laws that might be implicated as well in foreigners immigrating to the United States.
I have written numerous blogs on the EB-5 foreign investor’s visa, International Taxation Issues and Foreign Assets and Accounts over the past several years. Anyone interested in knowing more about these topics should visit our blog site

Attorney’s Concluding Remarks:

THIS IS END OF “LEGAL THOUGHTS” FOR NOW

Thank you for giving us the opportunity to inform you about “Why Foreign Investors Consider the EB-5 Visa?”
We might discuss other aspects of the EB-5 foreign investor’s visa, its requirements, and international tax issues affecting foreign investors in follow up podcasts or blogs in the near future. If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Subscribe to our podcast and stay tune! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, litigation, and immigration. Until next time, take care.