From the Desk of Julie C. Ferguson

This month we have big news. I’m pleased to share that I have merged my practice with the law firm of Carlton Fields where Sasha, Valeria and I will continue to practice immigration law.  As you may know, Carlton Fields is a leading firm in the South East representing a broad spectrum of business clients ranging from multinational Fortune 100 companies to start-ups.  Carlton Fields has a stellar reputation in many areas including business litigation, healthcare, corporate securities and tax but it has not had an immigration practice – until now.

Our first day with the firm was January 9, 2012.  Now, in addition to providing top notch legal services in the areas for which it is already known, Carlton Fields can provide immigration services, we in the immigration group can rely on our new colleagues to provide a full range of other services that we have not been able to offer before. We are already working closely with attorneys in the tax-planning department to provide pre-immigration tax planning to clients who anticipate becoming lawful permanent residents.  We are also working with the corporate and securities department to establish legal entities for clients starting businesses in South Florida and companies interested in raising capital through the immigrant investor visa program.

With this merger we are also expanding our presence as the firm has offices in Atlanta, Tampa, Orlando, West Palm Beach, Tallahassee and Miami. 

With the support of our new firm, we aim to solve your immigration problems, no matter how simple or complex, and to bring you the highest level of service and attention and excellent value to which you are accustomed.  Please think of us not only for your immigration, but for any legal needs you may have.  We look forward to our continued collaboration and to an excellent new year.

 - Julie

Administrative Review Board Holds that Effective Termination of Employment Occurs when USCIS is Notified

In Matter of Univ. of Miami (decided 12/20/11), the Administrative Review Board (ARB) made two findings of interest to employers of foreign nationals with respect to responsibility for back pay.  First, the ARB found that an employee was entitled to pay for two weeks of involuntary non-productive time from when she entered the US until she received her Social Security Card.  The University informed the employee that she needed to obtain the Social Security Card and that it was a condition of beginning employment.  In addition, the ARB reaffirmed a previous decision holding that an employee’s termination does not become effective until the date USCIS is notified.  In consequence, the University of Miami was liable for back pay from the date of actual termination until USCIS received the notice, which was several months later.

The decision should serve as a reminded to employers that creating requirements, such as receipt of a Social Security Card, can cause the employer to be liable for additional wages if it delays a new H-1B worker’s employment start date.  In addition, the ARB’s finding on the effective termination date is notable.  Even though the University termination and communicated the termination to the employee, it did not terminate for purposes of its wage obligations under the Labor Condition Application until USCIS was notified of the termination.

DHS Announces Important Changes in Processing Unlawful Presence Waivers

On January 6, 2012 the US Department of Homeland Security proposed regulatory changes to the processing of I-601 unlawful presence waivers for certain family members of US citizens.  Once implemented, the proposed rule will allow these family members to remain in the United States while their waivers are being adjudicated.  Under current procedures, the applications must travel abroad to file their waiver applications and remain abroad, for lengthy periods of time until their applications are approved. 

Under the proposed rule, a foreign national would be eligible to apply for a provisional waiver of the unlawful presence bar in the United States if he or she is the beneficiary of an approved visa petition by a US citizen, classifying him or her as an “immediate relative,” and the foreign national demonstrates that the denial of the waiver would result in extreme hardship to the US citizen spouse or parent.  An immediate relative is the spouse, child under the age of 21, or parent of a US citizen.  Sons and daughters of US citizens must be 21 years old in order to petition for their parents.

Once the waiver is approved, the foreign national would still need to depart the United States to apply for an immigrant visa through the US consulate in his or her home country.  However, with the waiver already approved, the immigrant visa process will be much faster.  In addition to minimizing the hardship US citizens and their immediate relatives suffer due to prolonged separation, the new process also minimizes the dangers certain applicants face in their home countries.

Again, this proposed change applies only to immediate relatives of United States citizens.  We welcome this change but are also are hopeful that similar consideration will be give to individuals whose qualifying relatives are lawful permanent residents as well.

The proposed change also excludes foreign nationals who are inadmissible for reasons other than unlawful presence, such as criminal convictions, or fraud.