Today the U.S. Government announced that it will be eliminating the I-94W form (the green immigration form you complete on the airplane) by the end of this summer. You can read more about it at the Department of Homeland Security’s website at http://www.dhs.gov/ynews/releases/pr_1274366942074.shtm. (A direct link is provided under the “Related Websites” section of Rinzler.com)

The entry period for this year’s Diversity Visa (”Green Card”) Lottery is from noon on October 2, 2009 until noon on Monday, November 30, 2009.  Entry is free and can only be done online at the U.S. State Department website at http://www.travel.state.gov/pdf/DV-2011instructions.pdf. (A direct link is provided under the “Related Websites” section of Rinzler.com)

The U.S. Senate just passed a bill (with the House expected to shortly do the same) which would add a $10 fee every time a visa waiver person renewed their ESTA (Electronic System for Travel Authorization) registration. If such is the case, then one might as well pay the $131 and get an old-fashioned B-2 (tourist) Visa, valid for ten years.
In addition, the State Department is about to announce a new tiered MRV fee schedule (which they had hoped to impose this October 1 but couldn’t get OMB clearance in time) which is simply outrageous. It would apply to many types of work visas.
Here is a link which describes the new ESTA $10 fee:
http://www.thetransnational.travel/news.php?cid=Travel-Promotion-Act-Entry-Fee.Sep-09.16
In a more informative vein, here is some text I lifted from an FSO’s blog which gives the real scoop. I’d prefer to keep this person’s identity secret now for obvious reasons.
The US senate has passed a bill that would require all visa waiver travelers to pay a $10 fee every time they renew their registration in ESTA. This money would go toward creating a new, many-legged bureaucracy “to communicate United States entry policies and otherwise promote leisure, business, and scholarly travel.”
[I] remember the day the MRV fee began. It was $20, and then-Assistant Secretary of State for Consular Affairs Mary Ryan and her staff had to fight like Vikings to keep their hands on some of that money to use to upgrade and improve consular systems. Now consular systems are amazing, and the MRV fee has paused only momentarily at $131 on its way to the stratosphere, and on its spread to paying for all sorts of offices and programs that have little to do with visas…
Into this mix shortly will fall a ‘tiered’ MRV fee schedule guaranteed to confound and frustrate applicants, officers, off-site collection parties, consular cashiers and travel agencies even further still. And [I] predict that the price will continue to rise just because it can, and because the US is too cheap to consider consular work a line item - exactly the way so many low-life US states fund their educational systems through lotteries - as long as there’s money to be made, while old ladies in Paris, Moscow and Uttar Pradesh pay these usurious fees and deal with unsavory characters they would never speak to under normal circumstances, to make a trip they’re getting the feeling they’d rather not have to. (”If they can afford airline tickets, they can afford the MRV fee!” “Their children are paying it, and they have money” “If they want to see their kids, they’ll just have to tough it out” and other such arguments are cruel as well as irrelevant. Don’t even get [me] started on these. And “Secure Borders, Open Doors?” In a pig’s eye, as Grandmere would spit.)
[I] believe that communicating US entry policies is something that consulates and travel agencies worldwide already seem to do pretty well - not to mention the thousands of web sites and blogs that publicize the annoyance and outrage felt by honest travelers when they meet US entry processes at their most brutal; up close and personal. This communication is also conveyed with depressing regularity by the numerous surveys conducted all over the world that rate the United States as the world’s most unfriendly country for international travelers.
This news story [found in the link above] concludes with, ‘UTA CEO Roger Dow said the legislation would help the United States “strengthen its image in the world as visitors leave with an improved perception of our country and her people.”‘
Sorry, Roger. You can put lipstick on a pig and call her Fifi, but she’s still a pig. [I] do not believe for a single instant that picking VWP travelers’ pockets for ten measly dollars will do anything to improve any of this. Nor would picking their pockets for $100 or $1000, which is, without doubt, coming down the tracks.
The only thing that could possibly do what Roger says would be the initiation of actually user-friendly processes for visa applications, VWP travel, and immigration. Right now, visitors are greeted with the equivalent of, “Who the hell are you and what the hell do you want and why the hell should I care?” and leave to, “Here’s your hat, what’s your hurry?” And when might this improve, no matter how much we pick travelers’ pockets for?
If Roger Dow and his merry pirates, and the honorable gentlemen and ladies of the US senate, really believe that a few travel posters might improve these arrogant, debasing, humiliating and shamelessly costly circumstances, [I] can only offer a bit of advice to the world’s travelers: ‘Have mercy on yourselves. Visit Tahiti.’

During the course of my practice I have found that many people become terribly nervous or unsure as to how to respond to questions at a consular visa interview or border crossing. While every situation is different, I have found that three simple rules make for good advice:

1. Tell the truth. There is a saying that the cover-up is often worse than the crime. This is absolutely true in immigration law. Most past violations of the law can be forgiven, but not so with misrepresentation. If the consular officer or Immigration official thinks you are lying, you will be denied the benefit you are seeking (be it a visa or entry into the U.S.), even if his belief is mistaken.
2. Keep it simple. Why is it that the majority of people cannot seem to answer a direct question with a simple yes or no answer? If a consular officer asks whether you like chocolate or vanilla ice cream, say “chocolate” or “vanilla”. Don’t give one of these “well I like vanilla but if I’m feeling depressed chocolate seems to cheer me up because chocolate reminds me of when I was five years old and…” The officer doesn’t want to hear it or your life story; he just wants a simple answer to a direct question so that he can make a decision.
3. Don’t volunteer. This is another piece of advice which you would think would be obvious, but isn’t. Consular officers and Immigration officials are not shy creatures; if they want to know something from you, they will ask. So yes, be polite and friendly, and an occasional smile never hurts, but do not volunteer information. Most of the time you will only be shooting yourself in the foot. You are not a lawyer, and saying something which you may believe is innocent may end up really hurting you.

You’ve got your visa, but what does it all mean?

• First, check to make sure that all of your personal data is correct. This includes your name, date of birth, passport number, gender, etc.
• Next, check the type of visa (normally “R” for a regular, personal passport as compared to a diplomatic passport)  and the class (e.g., B1/B2, E-1/E-2, F-1, J-1, L-1 or L-2, H-1B or H-4, etc.). Also check to see whether it is for multiple entries (”M”).
• Third, the issuance and expiration dates. For most work visas, the expiration date will be the same as on the petition which was approved by CIS.
• Annotation. For a work visa, this will have the employer’s name and the CIS petition number. For a spouse or child, it will also have the name of the principal alien (”PA - John Doe”).

• An Immigrant Visa will clearly state IMMIGRANT VISA in the upper right-hand corner in bold capital letters (in place of the Control Number on a non-immigrant visa), followed by your National Visa Center case number (e.g., for Frankfurt it will be FRN200912345678). Right under that will be your Registration Number (which is also your Alien or A number, such as 033 456 789), and under that will be your IV category (such as CR1 or  IR1 when you are the spouse of a U.S. citizen).  It will have a validity of six months.

When I write my “how-to” book about the consular practice aspect of immigration law, the title will be “But The Consulate Said…” This is because I am saddened and amazed at how often visa applicants receive either inadequate or simply inaccurate information from a consulate. While there may be disagreement as to the causes of this problem, the fact remains that the problem exists. This is due to various factors, only six of which I will mention here:

1. First, immigration law is complex, yet clients want simple answers. Most of the time this is just not possible. Asking what it takes to obtain a Green Card is like asking a doctor what it takes to perform surgery; the answer is “it depends on the facts of the individual case”.
2. These days it is exceedingly rare for a caller to be able to speak with an actual U.S. diplomat (known as an FSO, or Foreign Service Officer), rather than a local employee (known as an LES, or Locally Employed Staff). In fact, in Germany callers can now only speak to outside contractors who man the telephone center; they don’t even reach LES. Regardless of with whom they speak, however, a key fact remains: the provider of the information is not an advocate, and thus has only limited incentive to help find a solution to the inquirer’s problem.
3. The staffs at all U.S. embassies and consulates are terribly overworked; they often do not have the time or resources to do their jobs properly. This is another reason why they sometimes cannot help even when they want to do so.
4. Not only do time constraints prevent the consular staff from learning all of the facts of a particular case, but in the case of FSO’s, their prior postings may lead them to rarely give the benefit of the doubt. For example, if an FSO’s first posting was in a country with a high fraud rate, such as India or the Philippines, then for the rest of her career she will be inclined to give much less credibility to an applicant in a questionable case than if her first posting was in a country such as Japan, where the fraud rate is very low.
5. Applicants may state a fact which they believe to be innocent or of no importance, yet under the law may be very damaging. There is no such thing as an “off the record” remark to a consular official.
6. Germans rightly expect their civil servants to be knowledgeable about their jobs and the government regulations affecting the programs they administer. When a German asks a government clerk for information, he can count on receiving the correct answer. Unfortunately, that expectation extends to their dealings with consular officials, and here they are often unfounded. A combination of thirty years’ worth of “government bashing” by conservatives, reduced resources, and unfortunate changes in the State Department’s recruitment and promotion policies have led many of the most qualified people to leave Government service as soon as possible, and to make potential new employees look for jobs in the private sector. The result is that many consular officials are simply not equal to the task.

There is a tremendous amount of misunderstanding about “Green Cards”, the common name for a Permanent Resident Card (I-551), which is proof that the holder is a legal permanent resident (LPR) of the U.S. This brief article gives a basic explanation of what Green Cards are, when they are needed and/or advisable, and what is necessary to retain them. The reader is strongly reminded, however, that each case is unique, based upon its complete facts, and thus the contents of this article should not be used as a substitute for competent legal counsel.

What Is A Green Card?

One of the fundamental misconceptions many Germans have about Green Cards is that they are not required for someone who wishes to retire in the U.S. as long as the retiree has enough personal financial resources so that he/she does not need to work or receive any type of financial assistance or government benefit (e.g., Social Security, Medicare, etc.). Nothing is further from the truth.

Unlike Germany, the U.S. does not have separate residence and work permits. All work visas (E, H-1B, J, L) automatically give the holder permission to reside in the U.S. while he is working for his sponsoring employer. Except for a Green Card, there is no such thing as a “residence-only” permit, one which would allow the person to reside in the U.S. as long as he does not seek employment. This issue often arises after an alien has bought a house in Florida and thinks that he will be allowed to retire there, only to learn that he does not qualify for LPR status. A Green Card allows the holder to reside permanently (1) in the U.S. and to work (if at all) for the company of his choosing.

A Green Card is one of the prerequisites to acquiring U.S. citizenship through naturalization. One can apply to become a U.S. citizen after having a Green Card for three years (if it was obtained through marriage to an American citizen) or five years (if obtained through employment). While in the past there was no great need to ever take on American citizenship, this belief is changing. Recent and proposed changes in various immigration laws are making the acquisition of American citizenship a wise thing to do in more and more cases. For example,  conviction of virtually any criminal offense can lead to Citizenship and Immigration Services (CIS) moving to deport the offender, even if the alien has lived in the U.S. for many years and has an American citizen wife and children.

When Is A Green Card Required?

Any time an alien wishes to permanently live in the U.S., a Green Card is required. Unfortunately, many persons and employers do not consider this issue until it is too late.

A classic example is the employee who has been working for the same company in the U.S. for the past 5, 10, or even 20 years. The family’s entire life has become U.S. based: they own a home here, their children have been raised here and consider Germany a foreign country, and they have virtually no ties left with the Germany they left many years ago, let alone a desire to return there. The problem arises when they are forced to contemplate the end of their employment, whether due to retirement, downsizing, or whatever, and they first learn that they will not be allowed to stay in the U.S. In many such cases the employee might have qualified for a Priority Worker Green Card 2 had the employer filed the required petition in time. In this regard management should consider the possibility of applying for a Green Card on behalf of a valued qualifying employee as part of a comprehensive benefits package which should not only save the company money in the long run (by not having to deal with renewing visas or discovering that an employee has received the maximum stay allotted by his visa), but will boost the employee’s morale by making his future more secure and by giving his wife and minor children the right to work in the U.S. In addition, those employees with college-age children will be able to pay in-state tuition rates, a significant savings.

Advantages of Having A Green Card

As already shown, there are numerous advantages to having LPR status. For the alien these include having the right to reside permanently anywhere in the U.S. with his spouse and unmarried children under the age of 21; for him, his spouse, and his unmarried minor children to be able to work for anyone or for no one; freedom to travel to/from the U.S. without having to worry about U.S. visas; and the ability to apply for U.S. citizenship, though there is no requirement to ever do so (thus maintaining one’s German citizenship, German passport, and eligibility for German retirement benefits).

For the employer, the benefits include more certainty and flexibility with regard to long-range personnel needs; a happier and therefore more productive employee; and an incentive which can be used to retain the best qualified employees. In the case of more senior employees, an offer to sponsor for a Green Card so that the employee can eventually retire in the U.S. can be utilized by both the company and employee as a valuable benefit.

Requirements For Retaining A Green Card

In order to retain LPR status, two basic requirements must be met: demonstration of an intent to keep the U.S. as one’s permanent home, and payment of taxes on one’s worldwide income (just like a U.S. citizen).

Intent can be difficult to prove but, in reality, common-sense considerations apply. Issues such as ties to America (where one spends the most time during the year, where homes are owned or rented, where one works, where immediate family members live, etc.) are the starting points for consideration. Ironically, it is these same factors which can work against the alien who owns a home in the U.S. and mistakenly believes that he can “live” in the U.S. as long as no single visit ever exceeds the time allotted by INS during each “trip” (normally either 90 days under Visa Waiver or six months under a B-2 Visa). If the CIS believes that someone who is not a LPR is actually residing in the U.S., they will bar that person from entering the U.S. Thus if someone is spending a total of 9-10 months of every year in the U.S., there’s an excellent chance that the CIS will eventually question that person very carefully with an eye towards refusing admission. (In this regard it is important to remember that a visa is simply a document issued by the State Department which allows someone to apply to enter the country; it is the INS, part of the Justice Department, who decides whether that person will be admitted and, if so, in what category and for how long. In short, a visa does not guarantee admission.)

Related to this is the possible need for a re-entry permit. If an LPR expects to be absent from the U.S. for more than one year (because, for example, he is being temporarily reassigned to the overseas parent company for 18 months), he needs to obtain a re-entry permit from CIS before his trip. By receiving such a permit the LPR has demonstrated to the INS that his planned long absence from the U.S. should not be construed as an abandonment of his intent to keep the U.S. as his permanent home.

With regard to taxes, Federal law treats all LPR’s as U.S. tax residents, and thus they are required to file an annual income tax return based upon their worldwide income. Because of international tax treaties, however, an LPR generally does not pay double taxation. (Also, one must not confuse possible tax liability with the simple obligation to file a return, e.g., even with filing a return no tax may be owed.) If an LPR does not file a return, however, he is creating a presumption that he has abandoned his intent to keep the U.S. as his permanent home.

Conclusion

While a Green Card may not be for everyone, nor will everyone who wants one qualify, it is clear that many companies and employees do not address the issue until it is too late. Since the petitioning employer must proffer, and the alien must accept, an offer of indefinite employment, it is critical that the petition be filed and LPR processing be completed before a fixed employment termination date has been reached.

(1) “Permanent” is a relative term: an LPR must meet certain conditions to keep his Green Card, e.g., filing an annual Federal income tax return on his worldwide income, and the Federal Government can move to revoke Green Cards under certain conditions, such as fraud or abandonment of residence.

(2 )This type of Green Card does not require the dreaded labor certification. As with an L1A (intracompany manager or executive) Visa and certain E-1 and E-2 Visas, if the employer can demonstrate to CIS that the alien was employed as a manager or executive by the overseas affiliated company for at least one of the three years preceding his entry into the U.S. and that he came to the U.S. in a similar capacity, the U.S. Labor Department is removed from the process.