Providing Immigration Solutions for Employers & Individuals
Providing Immigration Solutions for Employers & Individuals
Providing Immigration Solutions for Employers & Individuals
Providing Immigration Solutions for Employers & Individuals
Immigration Solutions for Employers, Families, and Individuals
Citizenship and Green Card Delay Immigration Lawyers | Mandamus and 1447(b) Complaints
What is a Mandamus Complaint and Who Qualifies?
The mandamus statute states that it is: “An action to compel an officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff.”In a small percentage of cases, USCIS is delaying by years the granting or denying of Citizenship and Green Card applications. If you are in this situation, you may consider filing a petition for mandamus relief with a federal district court. By filing for mandamus relief, you are asking the court to approve or deny your application.
The complaint is filed with the federal district court that has jurisdiction over the director of the local USCIS office that has held your application. USCIS will have 60 days to respond to the complaint. The court will generally send the case back to USCIS and instruct them that they must take action within a certain period of time.
USCIS claims that FBI background checks are to blame for the excessive delays, but whatever the case may be, by law, the immigration service is required to adjudicate cases within a “reasonable time.”
Ideally, an applicant should prove that they have exhausted all other options, and shown that they have taken actions to move the case forward. Such actions include emails, faxes, and letters to agencies such as USCIS and the FBI, to Senators or Congressmen, and proof of scheduling infopass appointments, inquiring about the status of your case.
If you are a naturalization applicant, and you have already had your initial interview, and 120 days have passed, a 1447(B) complaint may be a better option.
What is a 1447(b) Complaint and Who Qualifies?
8 USC 1447(b) is a statute which specifically provides for court review of a stalled naturalization application when 120 days have passed since the naturalization interview. The court will provide one of two forms or relief: i) an decision of the naturalization application in the court and by the court, or ii) remand the case to USCIS for immediate decision.
When may I Apply for Relief in the form of Mandamus or 1447(b)?
For mandamus complaints, if your case is well beyond the normal processing time, and you have taken actions to move your case forward to no avail, your case may be ripe for filing. As for 1447(b), such a complaint can be filed immediately after 120 days pass without having to demonstrate anything else.
What are the Advantages and Limitations of Mandamus and 1447(b) Complaints?
Uncertainty is obviously a source of great anxiety. When an applicant takes action to file a mandamus or 1447(b) complaint at the appropriate time, they can finally anticipate that their case will be resolved within a certain period of time.
The drawback to filing a complaint to move your naturalization or green card application case forward is that it may lead the immigration service to be vindictive and find some way of denying your case. When an individual does file such a complaint, he or she should be fairly certain that USCIS will not be able to find a reason to deny their case, such as a past criminal history or any past documentary submissions with discrepancies which may be construed as fraudulent.
What is the Attorney’s Role in a Writ of Mandamus or 1447(b) Case?
An attorney is trained to prepare a properly formatted complaint outlining the cause of action, relief sought, and basis for relief. You must serve the proper parties, and should understand procedural rules to pursue either a writ of mandamus complaint or a 1447(b) complaint. An attorney who has successfully pursued complaints in the form of writ of mandamus of 1447(b) will ensure that your case is properly filed with the district court.
Contact Us
To discuss Mandamus and 1447(b) complaints with an experienced immigration lawyer from the Shah Peerally Law Group, feel free to contact us by emailor call us at 510-742-5887.
Fees
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Writ of Mandamus Testimonial
“Shah is a great lawyer. I have and will recommend him to anyone who comes my way looking for a lawyer. My case was more then complicated, and I am sure that is what everybody thinks about their case. I actually met Shah, through Google when I was looking for a lawyer who would offer a free consultation. He actually read my email and responded to me within 30 minutes and offered me information over the phone and invited for a free in person consultation. He was patient, focused and involved in my situation. Meeting me for the first time, he introduced me to his all of his staff. He took his time to listen to my story from day 1 till I met him. I had a mandamus situation, where my citizenship was pending for almost a year and a half. He not only gave me hope that he will win my case, he also showed me previous examples of Mandamus cases that he done before. After my mandamus, came filing for my husband’s AOS, which was no less complicated. He was all the more confident after my mandamus came in favor. Shah responded to all my emails within hours and was available to talk to me, whenever I needed to be assured. Most of all, I have never met anybody who actually called me when they were not in the country. The day I got my citizenship, and my certificate had errors. I called his office, and expressed my concern to his staff and they told me they will try to have Shah call me, and he actually called me from Malaysia. My family and I were so impressed and thankful. To me and my family, he is a very honest, humble and caring human being, and as a lawyer he is more than qualified, along with being personally involved in all his cases. He is not like many lawyers who listen to you and say yes, take your money and pass your paperwork to their staff. He is involved from beginning to the end. His staff is just great, very friendly and caring. -Sabreen“
Click the following link for more testimonials — > Testimonials
The United States has created an immigration solution for companies with subsidiaries, affiliates, and branches around the world. The L-1 classification allows foreign nationals employed outside of the U.S. to enter the U.S. and work for a qualifying subsidiary, affiliate, or etc. There are two types of L-1 classifications available: (1) L-1A, for individuals employed in a managerial or executive capacity, and (2) L-1B, for individuals with specialized knowledge capacity.
Today, transnational corporation commonly have numerous subsidiaries, affiliates, and branches throughout the world. Subsequently, companies may need to temporarily transfer a high-ranking or uniquely talented employee to an affiliate in another country to handle some specialized business.
Generally, the USCIS initially grants an individual L-1 status for three years. However, an individual’s L-1 status will initially last only one year if he or she is entering the U.S. to work for a start-up company. Once in L-1 status, an individual can extend their status after the initial period expires. Individuals in L-1A status can extend their status for up to seven years, while individuals in L-1B status can extend their status up to five years. Note that since all employees are hired on an “at-will” basis, the L-1 U.S. employer is not required to retain the employee for the entire seven or five year period. Finally, if the employer/employee relationship endures for the entire L-1 period, the individual must spend one full year outside of the U.S. before her or she is eligible to apply for a new period of L-1 status.
Once granted L-1 status, an individual’s spouse and children are eligible for L-2 derivative status. Individuals in L-2 status are not authorized to work unless they apply and receive an employment authorization card (EAD). However, the USCIS allows individuals to attend a U.S. school without changing his or her immigration status.
Requirements
An L-1 candidate must provide the USCIS with (1) proof of employment with a qualifying U.S. company; (2) proof that the L-1 employer generates sufficient business to employ the candidate; and (3) evidence that the candidate will be engaged in a “managerial or executive capacity” or “specialized knowledge capacity.” These three requirements are explored in further detail below.
Proof of Employment with a Qualifying Company
The L-1 candidate must be employed with the petitioning company’s affiliate, parent, or subsidiary for a continuous period of one-year within the three-years prior to filing the petition or entry into the U.S. This employment must have been in either a managerial/executive capacity or specialized knowledge capacity.
The candidate then must submit the required supporting documentation about the petitioning employer:
* Evidence that the company abroad and the petitioning company are related. The critical issue is whether either of the companies exercise control over the other company. This is a relatively flexible requirement, as even a 50/50 joint venture qualifies;
* Detailed written description of the petitioning company’s business, including its history, facilities, resources, and organization;
* Description of the company’s employees along including job titles and duties;
* Evidence that the company will continue to do business abroad during the candidate’s U.S. employment; and
* Documents evidencing the company’s corporate organization and long-term financial viability.
Doing Business in the United States
The L-1 candidate must also include evidence that the petitioning company is engaged in sufficient business to employ the candidate, including:
* Detailed description of the company’s U.S business, including history, number of employees, locations, and any marketing materials. This is especially important if the company is a start up business;
* Corporate documents such as financial statements, incorporation documents, and SEC reports;
* Evidence of assets such as corporate bank account statements;
* Copies of lease or purchase options for buildings or spaces;
* Detailed description of the company’s employees, including resumes, job titles, and job offer letters; and
* Name and title of officer who will sign forms.
Managerial or Specialized Knowledge Capacity
After the candidate establishes proof of employment with a qualifying U.S. company, he or she must submit documentation that the candidate qualifies for either an L-1A or L-1B classification.
The candidate qualifies for an L-1A classification if (1) he or she is employed in a “managerial” capacity, meaning that the candidate primarily supervises or controls the company’s day-to-day operations, or (2) he or she is employed in an “executive” capacity, meaning that the candidate makes the company’s overall business and policy decisions.
An L-1B classification may be appropriate if the candidate possesses “specialized knowledge” essential to the company’s business affairs. This is a relatively broad classification as it can include specialized knowledge of a company’s machinery or operations, or if the individual has expert knowledge on a a company’s processes and organization.
Additionally, L-1A and L-1B candidates may also include the following supporting documentation:
* Evidence of higher education, including degrees, diplomas, transcripts;
* Detailed resume evidencing the candidate’s continuous employment with the company for one-year within the three-years preceding the filing of the petition;
* Evidence that the candidate was employed in either a managerial/executive or specialized knowledge capacity abroad, and that the candidate will continue this employment in the U.S.;
* The candidate’s salary/compensation abroad and in the U.S.;
* Corporate organizational charts detailing where the candidate is employed in the corporate hierarchy;
* Copies of passports and any other supporting documentation.
Filing Procedures
To apply for L-1 status, the candidate must file an I-129 form with the USCIS, along with the supporting documentation listed above. Note that individuals employed outside of the U.S. are advised to attain an L-1 visa before her or she begins employment with a U.S. affiliate. This is because although an individual may be granted L-1 status, that does not necessarily mean an individual has an L-1 visa. Therefore, though the individual may be allowed to stay in the U.S., he or she cannot travel until they get a visa at the appropriate consulate. To avoid any such inconveniences or legal problems, individuals should obtain a visa before beginning employment in the U.S. This is why it is recommended to hire a good lawyer to assist you in the process. The Shah Peerally Law Group PC has been providing L1A and L1B immigration solutions for many years, feel free to contact us at 510 742 5887.
The preparation of an L1 visa or any kind of visas requires a good understanding of immigration laws and regulations. There are other important issues not covered in this article regarding L1 visas such as the petition to obtain a work permit for L2 dependents and L1 blankets. One should consult a licensed and experienced immigration lawyer before moving forward with any immigration case(s)
If you have any questions or concerns, you should contact an experienced immigration attorney for further details. Our office has prepared many similar applications, feel free to contact us on (510) 742 5887, should you need any additional information.
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.
1) My wife recently got H1b on October and basically for two months she didn’t have a job and November last week she got a job, so I just want to know how if she doesn’t have paystubs for November and October is that ok or how is that?
- Ok did she transfer?
- No, that was a finished h1b and early the project was dead and then later on it was scraped out.
- Ok the first month of the H1b, there’s no real requirement to have what we call a paystub, but after that there might be a problem at a later stage but it’s not about the monthly paychecks, but what they are looking at meeting of the requirements of the total what they are suppose to pay up, for example, let’s say they’re going to pay $100,000 at the end of the year it has to show $100,000, so the reasons they want the check stubs to show that you maintained status in this case it may be a problem but one way to reset is that leave the country and come back, its only one month that they need the paycheck stubs. Later on, when you apply for GC they can come back and question the maintenance of status.
2) My GC is filed under EB category and I been waiting for last 6 years and I’m about to make a decision to do a job change to a new company what would you recommend to file an new H1 transfer or should I go on EAD?
- Well you don’t really have to; your I-140 is approved right?
- Yes, I-140 Approved
- If you’re I-140 is approved then you are not obviously qualified for EB2 probably or even if you do there are few reason why people go on H1b but I always recommend to use your EAD, but there are few reasons for one, for people, for example, who don’t feel like there I-140 is secured, just to let you know once you’re I-140 is approved and 180 days have passed (after filing of the adjustment of status I-485) the previous company cannot revoke the Form I-140, that means you can keep that and move under AC21 (American 21st Century Act ) you can move to another company on EAD.
- Now the question should you keep the H1B? Are you married? Your wife also has EAD?
- Yes I’m married, yeah she is working on EAD
- Then you don’t really need to go on H1b, that is not required, the only reasons I would ask you to do that if you feel like there is some problem with the company and there might be a chance down the road that an I-140 is revoked, not based on the company own stuff but based on the government thinking that there was fraud or something involved but if that’s not the case you don’t need to keep the H1b going and how many years of H1b have you had going so far? Then the other reason is if your spouse need an H4 because the spouse was not able to get an EAD (priority dates not current).
- I have completed 6 years on H1b and I got extension with the present company for 3 more years.
- And when is it Expiring?
- 2015
- Well this is how it works you don’t really need to do that but if at a later stage you need h1b before 2015, you can actually use that do a transfer and keep that 2015 priority date even if I-140 is revoked and if not revoked you can use it to extend with another I-140 you can extend a new h1b, but honestly you don’t really need it. In this case, it is something your can decide depending on how strong is the company who file for your I-140.
- I can change the job on EAD is that what you’re saying?
- Yes, EAD let me explain to you what you are doing right now, EAD is a work permit you can work anywhere actually, you can work at night at another company which is not related, but the AC21 which is parking of the GC, I call it the parking because you need to have the company to go back to , when the GC comes in your hand so that is why the AC 21 is just a parking you have to go there when you get the GC, there is nothing that prevents you from going back to company A, but we need to do AC21 letter, then you can transfer it’s not really a transfer its just your taking the GC from company A and parking it with company B. So the answer is yes you can go ahead and move on the EAD.
- And my educational qualification is 3 years in Bachelors degree in India so that’s why I’m not qualified.
- That’s why you’re not going to get EB2, Keep it on EB3 but make sure your moving to same or similar position.
3) I have a question starting a business in US I’m on H1, am I able to start a consulting company?
- Not really because, the answer is yes and no – you can own a company but you cannot be active in the company like for example you can own shares in Microsoft but you’re not going to be active in the company so its dormant so that’s allowed but if you’re going to do like daily work like signing checks taking orders and things like that no its not allowed – you’re in violation of your H4 this is why we are very upset because the law just locks people on H4.
- Ok, can I even hire the people?
- The problem is what do you consider active, let’s say you set up the system and then you just own the company your just the share holder, you don’t get involved in the day to day running of the business you should be fine but the problem is that if the immigration look at it will say – ok how did you do that? You have to talk to the people owning your business, you have to do the accounting, and you have to do things like that then you are in violation of the H4, so it is very difficult to run a small business on H4. Even if the law allows you to own a business you cannot be participating in it but there is no loophole really because if there was one people would have taken it. I have a very good article on this H4 options on my website www.peerallylaw.com you can read about it, but technically you cannot have a small business because you will have to be active in it.
- Even on H1?
- H1 same problem, unless there’s an H1 attached to that company, you’re not technically allowed to do any kind of active role, you cannot be a director you can not be in a marketing role, you cannot be in sales, many people ask me well how will they know, well that’s an different issue, that’s a matter of proof, if you lie, it is your call, but we don’t advise anybody to lie, but that’s the way that visa is designed, even working remotely while you’re sitting in US can be a problem.
4) I have a question regarding transfer of a status, so when I apply change of status from H1b to F1 from within staying in the US it might take between 3-6 months but does my current employer gets notified or it can affect my current status in any way.
- Ok you’re on H1b right?
- Yes
- Ok there are 2 rules if you’re transferring from one H1b to another under AC21 rule you can start working on the same day you file the transfer even if it is not approved.
- Second rule no they don’t get notified what is happening it goes only with the new company, now if you don’t want to move before it is approved then do premium processing and then as soon as its filed even the employer knows about it and they send a cancellation notice on your current H1b so it doesn’t matter because the transfer has already passed.
- No sir I’m asking from H1b to F1
- Oh yes, no they don’t get informed about it, so you stay on H1 until the F1 is approved, but sometime they might send a letter by mistake to your employer but no they cannot because it has nothing to do with the employer .
The information contained in these answers is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, radios shows, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally is the managing for the Shah Peerally Law Group PC located in Newark CA. The office main area of practice is Immigration law www.peerallylaw.com Ph:510 742 5887
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No – contrary to popular belief, one does not have to be physically abused to file under VAWA. Mental, physical or even prevention of filing the right immigration papers can be construed as abuse. VAWA is a powerful legislation and it helps women, children and men. The provisions of VAWA (Violence Against Women Act) can also be used in situations of removal of conditional residence – Form I-751.
You should call our office on 510 742 5887, we will be glad to evaluate your case.
No, however, you have only two years after the anniversary of the finalization of the divorce to file the petition. Please make sure that you are filing under the prescribed time.
VAWA is one of the most powerful legislation, however unless you take advantage of it on time, you might miss the chance. Note that your spouse has to be a US Citizen or permanent residence to benefit from the Violence Against Women Act.
In case you are victim of domestic violence, and it was reported to the police, and your spouse is not a US citizen or permanent resident, you might be able to opt for the U Visa.
In case you are victim of domestic violence call 911. And if you want to get some possible immigration benefits, feel free to call us at 510 742 5887
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