Xequecal wrote:
Diamondeye wrote:
How does any of this have anything to do with it NOT being a loophole?
Loophole generally refers to a rare case of a few people gaming the system, not what is essentially standard procedure where almost everyone uses it.
That's funny, because the Democrats are making a huge deal of the alleged "gun show loophole" through which enormous numbers of firearms supposedly pass. I think loophole is a pretty broad term.
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The article is talking about employers hiring H-2s, they weren't going to sponsor them for residency in the first place and without such sponsorship, they're not actually immigrants.....that's why it's called a "nonimmigrant" visa. The vast majority of people that get permanent residency in the US through employer sponsorship do so by getting an H-1B, E-1, or L visa first.
It's going to cost at least $10,000 to have your company have an immigration attorney do the paperwork for the labor petition and the I-140, run the required ads, and interview any candidates that respond to these ads.
Yes, and you can do multiple job openings at a time that way, so if you do, say, 5 of them.. you're talking $2000 per applicant.
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Whether or not nonimmigrant visa categories are going totally unused is irrelevant unless employers actually want to sponsor people on these visas as permanent residents. Also, as I explain down below, H and L visas are the only relevant visas that are actually eligible for permanent residency sponsorship in the first place.
A) The visa itself may be, but there are other ways to change status not related to your original visa as I already explained.
B) Whether categories of visa are going unused speaks to whether or not people are actually engaging in the procedure you described as much as you think.
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http://www.americanlaw.com/dintent.htmlIn fact, E visas actually are supposed to prevent you from getting a green card. The Immigration Act of 1990 only recognizes H, K, L, and V visas as being valid for
dual intent, you are not supposed to be allowed to seek permanent residency while here on any other visa. USCIS allows E visa holders to seek permanent residency based on the fact that the E visa definition doesn't have the line where it requires that the alien have a foreign residence that they have no intention of abandoning. This really is what you would call a loophole and the rationale is extremely dubious, I'm not sure if it would hold up to actual scrutiny.
Dude - this is not hard
Intent is a very hard thing to prove. You can sincerely intend not to immigrate and then a week later meet a girl or a guy and start a relationship and want to get married - unless there's evidence that the marriage itself is a sham in order to get a status change, you can do that. Occasionally, sham marriages ARE uncovered and visas revoked, but it's fundamentally very hard to establish whether a person was sincere or not when they took an oath.
Yes, it's a loophole but the use of loopholes is by definition not fraudulent - just like using the "gun show loophole" is not illegal.
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Every single person that is present in the US on a nonimmigrant visa that wants to be sponsored for permanent residency has to file for a change in status, you have to change your status from nonimmigrant to immigrant. Seriously, assuming you are already present in the US, this is a baseline requirement of the process. It doesn't matter if you want to change your status because you married a US citizen or because your employer filed for a labor certification, you have to file for this yourself if you want the permanent residency. Since E visas should not recognize dual intent, you should have your E visa revoked the second you attempt to file for change in status, followed by them deporting you, but USCIS just isn't enforcing this.
The problem being that they would need to retroactivaly show you had intent to immigrate
at the time the E visa was issued.
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The only people that don't need to file change in status is the people that aren't in the US at all and were somehow being sponsored for a job without getting the temporary work permit first. However, this rarely happens because, like I said before, very few employers are going to want to file for a labor certification, do the required ads, wait for the labor cert to get approved, then file for an I-140, wait for that to come back, and then hope after some number of years have passed that the person they filed all this for still actually wants this job.
This happens all the time, because it is not nearly as expensive or lengthy as you think. I already explained why, and furthermore employers think they will make up the money in lower wages.
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I realize it is hard to prove beyond a reasonable doubt that all those H and E visa holders that had their employer file a labor petition and filed for change in status immediately after arriving lied when they said they had no intent to immigrate, but the fact remains is that most of them did, and under the assumption that the laws would actually be enforced, none of them would be allowed to immigrate.
Actually enforcing the law as written is nearly impossible because the burden of proof is so tricky. To enforce the intent of the law would require re-wording it so that you can't apply for status for ANY reason without first surrendering the visa and returning to your home country , whether or not you had dual intent.
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