Nicklaus Misiti Explains the EB-5 Investment Green Card

The EB-5 Investment Green Card is for Entrepreneurs & Business owners (and their spouses and unmarried children under 21) who make an investment in a commercial enterprise in the United States and who plan to create or preserve ten permanent full-time jobs for qualified United States workers are eligible to apply for a green card (permanent residence).

Reasons to hire the Law Offices of Nicklaus Misiti

  • Have extensive contacts important to the EB-5 & Investment Visa applications
  • “Client focused, success based” billing designed to get you results
  • Majority of the attorney fees are only earned upon the approval of your application
  • Your case will be assigned to a personal attorney and you will have that attorney’s direct cell phone and email contact, for convenient communication
  • Guarantee your calls & emails will be responded to by the next business day
  • Attorneys are members of the American Immigration Lawyers Association (“AILA”)
  • Current on the rules and regulations in the ever changing world of EB-5 practice

Who is Eligible for EB-5?

Anyone with sufficient investment funds may apply for EB-5. Investors in EB-5 need not have a particular background or any experience. However, their funds must be legally obtained. The funds can be obtained as part of a gift you received.   Up to 10,000 visas may be authorized each fiscal year for eligible entrepreneurs. You must invest $1,000,000, or at least $500,000 in a targeted employment area (high unemployment or rural area). In return, USCIS may grant conditional permanent residence to the individual. If you cannot meet the $1,000,000 or $500,000, please contact us to discuss other options. There are some investment-based visas that require only a $50,000-$200,000 investment.

Choosing the right law firm is not just about attorney billing and there are many other advantages to working with Law Offices of Nicklaus Misiti on your EB-5 application.  Law Offices of Nicklaus Misiti, PLLC is located on Wall St, the investment capital of the world and they have extensive contacts important to the EB-5 application, such as accountants and business advisors whom specialize in the EB-5 application.  Moreover, Law Offices of Nicklaus Misiti, PLLC always assigns a personal attorney to their client’s case and the client has that attorney’s direct cell phone and email contact, for convenient communication.  Law Offices of Nicklaus Misiti, PLLC guarantees your calls or emails will be responded to at the latest by the next business day.   Attorneys at Law Offices of Nicklaus Misiti, PLLC is members of the American Immigration Lawyers Association (“AILA”) and routinely attend conferences and clinics to keep current on the rules and regulations in the ever changing world of EB-5 practice.

How Long Does It Take for an EB-5 Applicant to Get a Green Card?

The whole process takes 1 – 1/2 years to get a conditional green card. This is the typical time for the typical case, but the time may vary due to your circumstances. How much does the investment-based green card cost? Costs vary based upon individual circumstances.

Law Offices of Nicklaus Misiti’s unique investment based green card (EB-5) billing arrangement:

  • Why pay in full if you’re not approved?
  • Don’t spend money until you understand how you’re billed!
  • Our billing structure means results for you!

Law Offices of Nicklaus Misiti, PLLC is now offering a unique “client focused, success based” billing arrangement for their EB-5 clients.  This approach means you are the center of the arrangement. The majority of the attorney fees are only earned upon the approval of your application.   If the application is not approved than the fee is not earned and you owe us nothing.  So in order for us to earn the entire fee, Law Offices of Nicklaus Misiti, PLLC will have to get your application approved.

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Attorney at Law Nicklaus Misiti Explains Four Hurdles that Threaten Immigration Reform

The next few months offer the best chance in a generation for the two parties to solve a problem that has troubled Congress like few others. Both sides agree the U.S. immigration system is in dire need of reform. Both would seem to gain from a deal that clears a pathway out of legal oblivion for the nation’s 11 million illegal immigrants. Support is building for a landmark pact. But while negotiations are progressing in both the House and Senate, an agreement is a long way off. As the talks grow more detailed, obstacles to a deal may begin to emerge:

Problem #1: The Gang of Eight

The first snag lurks in the Senate, where the so-called Gang of Eight has huddled privately since the election in hopes of hammering out a bill. Members have prepared a set of measures that would create a pathway to citizenship for the nation’s estimated 11 million undocumented immigrants within about 13 years while requiring them to register with federal authorities, pay back taxes and fines, learn English and undergo background checks. The deal, both sides agree, would also increase border security and determine how the future flow of immigrants will be regulated to match the needs of the economy.

The Gang’s closed conclaves have been marked by Vatican-style secrecy, often a sign of progress in a town where silence is rare. The Gang’s members – Republicans Marco Rubio, Lindsey Graham, John McCai and Jeff Flake, and Democrats Chuck Schumer, Dick Durbin, Bob Menendez and Michael Bennet – havedeveloped a rapport. “You can tell by the tone of their voices,” says an elected Democrat briefed on the progress of the private talks.

But the broad themes are the easy part. The full bill will stretch to hundreds of pages, each peppered with detailed provisions that could spike it. Members bring clashing political imperatives and ideologies to the talks. Rubio, for example, is trying to repair the GOP’s tattered image with Hispanic voters without sparking a backlash among the movement conservatives he’d need in a presidential bid. Graham, who faces a probable primary challenge in 2014, has a habit of basking in the bipartisan spotlight before bolting when negotiations intensify.  The measure of the Gang of Eight’s success isn’t whether they are aligned at the start of their talks. It’s whether they are all aligned at the end.

Problem #2: The Lobbyists

Several years ago, an impasse between the leaders of the Chamber of Commerce and the AFL-CIO helped scupper an immigration-reform bill backed by President George W. Bush. At that time, business and labor could not agree on how many visas to grant low skilled workers who make the construction, agriculture and hotel and restaurant industries hum. The Chamber wanted cheap labor, but didn’t want workers to stay; unions were concerned about protecting citizens’ jobs. Soon after, reform collapsed.

This time the two groups have nurtured an unlikely alliance. “There has been a sea change,” says a labor source close to the discussions. Nudged by Graham and Schumer, the two lobbies released a set of shared principles, including one stating that Americans should get “first crack” at available jobs and that businesses should have the flexibility to hire to meet the demands of the market. But history could repeat itself again. The two sides call for a new federal agency charged with setting visa levels, but they have yet to agree on who’s eligible or how the new bureau will work. The issue of future flow has been a stubborn sticking point before. And it is as easy to imagine conservatives balking at efforts to create a new government agency as it is to foresee unions drawing a line at a small number of foreign workers.

Problem #3: House Republicans

Even if Senate negotiators can come up with a package to get 60 votes in the upper chamber, “the question continues to be, how does it get through the House?” says Frank Sharry, an expert on immigration reform. As in the Senate, a bipartisan cluster of eight representatives from across the ideological spectrum have been secretly meeting for months. Congressman Luis Gutierrez, an Illinois Democrat who has long been a leader on immigration reform, is full of praise for the new tack taken by his Republican counterparts. But, he acknowledges, “You still have to put those votes on the board, and that’s going to be a real, real test in the House of Representatives.”

For their part, Republicans say the party’s old dogma, which held that illegal immigrants should self-deport and then go to the back of the line, is not viable policy. Even many immigration hard-liners say they want to help shape comprehensive reform. “It’s time for us to belly up to the bar,” says Ted Poe, the Texas Republican who chairs the House immigration reform caucus. But for conservatives, amnesty remains a dirty word. “A bill that’s basically amnesty, that says you’re here and you’re going to be a citizen — those two things are not going to come out of this conservative House,” says Poe. Even citizenship is charged enough that Republican Senator Rand Paul, who gave a speech March 19 backing a path to legalization for undocumented immigrants, avoided using the term. Many House Republicans, including several in the Judiciary Committee through which a bill must pass, have a long history of antipathy to amnesty, and only a grassroots rebellion to fear as next year’s primaries approach.

Then there is the reality that even if Republicans were to be widely supportive of amnesty, very few of those new citizens are likely to abandon the Democratic Party anytime soon. “Republicans face a choice: do they ditch their principles and go all out in a failing attempt to outpander Democrats?” asks Rosemary Jenks, director of government relations at Numbers USA, which advocates for lower immigration levels. “It’s becoming very clear to Republicans in Congress that this is not going to get them the Hispanic vote.”

Problem #4: The Democrats

Little discussed but also looming is the possibility that Democrats drag their feet on reform. Liberals will balk if the path to citizenship is too long or too onerous, or if enforcement provisions are too rigid. Many conservatives also suspect that Democratic power brokers, despite their daily hammering of Republicans to get moving on immigration reform, would privately prefer to keep the issue as a cudgel than actually pass a law. Barack Obama “wants to make a bill come out of the Senate that is so far out there that it would never pass, so that he can blame us for not being compassionate and use the issue to take back the House in 2014,” says a House Republican. Even some liberals see this as a plausible scenario. “There’s always a lingering doubt in my mind,” admits one House Democrat. Obama knows that putting his fingerprints on the deal is an easy way to kill it; when a draft of his proposal leaked in the press, he called Republican negotiators individually to apologize. But if negotiations in Congress bog down, he may not be so hands off.

By all accounts, negotiators are making genuine progress toward a landmark deal that builds on a foundation laid during its last fumbled attempts. But lawmakers still have to thread a bill through a thicket of obstacles in a bitterly divided Congress. Sources close to the negotiations say they expect both chambers to introduce legislation in early April, giving Congress several months to haggle out a pact before members scatter for their summer recess. It sounds like plenty of time, but it’s not. Immigration will have to jockey for attention this spring with gun control, budgets and a potential grand bargain on tax and entitlement reform. Meanwhile, the human cost of the political stalemate is high. Each day, 1,400 undocumented immigrants are deported.

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Attorney Nicklaus Misiti Answers EB1(a) FAQs

Q: What is the EB-1(a) visa?

EB-1(a) is a subcategory of EB-1 called the “Alien of Extraordinary Ability”. This is a self-petitions, therefore a job offer and an employer’s sponsorship is not required. Petitioner must provide evidence that demonstrates that they meet 3 out of the 10 listed criterion provided to prove extraordinary ability in their field.

Q: How many publications are sufficient to meet Eb-1(a) requirements?

USCIS determines each application on a case-by-case basis. There is no specific number set forth by the USCIS. Quality is more important than quantity in this instance.

Q: How important are the letters of recommendation?

Letters of recommendation written by experts in your field or some otherwise authoritative person in an allied or supporting field are very important to highlight the abilities and accomplishments of the EB-1(a) petitioner. Recommendation Letters provide the primary supporting evidence for an EB-1(a) petition.

Q: Can I still apply for an EB-1(a) if I do not belong to any professional association or organization in my field?

Yes. Membership in a professional association or organization is just one of the ten criterion listed for demonstrating extraordinary ability. However, if using membership in an organization as evidence of extraordinary ability, the quality of the membership in the professional organization will be vital; ordinary membership will not be helpful for an EB-1(a) petition. Evidence that “outstanding achievement” of its members is required to join an organization will be more helpful. In other words, professional organizations that are relatively easy to join will not be very strong in proving EB-1(a) eligibility.

Q: If my EB-1 petition is approved, when can I file for Adjustment of Status or an immigrant visa?

You may file for Adjustment of Status as soon as a visa number becomes available to you. Currently, immigrant visa numbers are immediately available for EB-1 category. Therefore, it is wise to apply as soon as the EB-1 petition is approved. Additionally, an  adjustment of status application can be filed simultaneously with an EB-1(a) approval.

Q: Do I need to be present in the U.S. to apply for an EB-1(a)?

No. You may apply for an EB-1 petition whether you are living abroad or in the U.S.

Q: After my EB-1(a) is approved, must I remain working in the same field as indicated in my petition?

A: Yes, you need to continue working in the field specified in your EB-1(a) petition. If you change fields, USCIS can deny your I-485 Adjustment of Status or even revoke permanent residency after an Adjustment of Status is granted.

Q: Where can I find help to file my petition?

Please contact Attorney Nicklaus Misiti at (212) 537-4407 today to schedule a case assessment and learn what you need to do to apply.

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Attorney Nicklaus Misiti on ICE’s Detention and Detainer Policy Changes

ICE Director John Morton issued a new policy memorandum on December 21, 2012. The memo addresses ICE’s detention policy and its enforcement priorities. According to the memo, ICE should only detain individuals who are deportable under the U.S. immigration laws and where one or more of the following circumstances exist: (1) prior felony convictions; (2) three or more prior misdemeanor convictions; (3) misdemeanor convictions for violent crimes, sexual abuse or exploitation, driving under the influence, unlawful flight from the scene of an accident, possession of a deadly weapon, dealing in controlled substances, or other significant threats to public safety; (4) conviction for illegal entry; (5) illegal re-entry after a previous removal or deportation; (6) outstanding order of removal or deportation; (7) knowingly committing immigration fraud; or (8) otherwise pose a significant risk to national security, border security, or public safety.

To initiate the new policy, ICE will issue a new detainer form that will require agents seeking to identify the reason for all detentions, which must be one of the aforementioned circumstances. Currently, ICE often detains individuals regardless of whether they fit into one of the above categories. This new policy will force the agency to become a little more transparent.

If your friend or family member is currently detained by ICE, you should seek help because that detention may not be necessary. For assistance, please contact Nicklaus Misiti at (212) 537-4407 or visit his website at  His firm has experience with all areas of immigration law and will be happy to help you.

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Nick Misiti on the Immigration Reform English Requirement

The touchy topic of immigration reform has catapulted to the top of the to-do lists of both Republicans and Democrats, even as both sides continue to bicker over details. President Barack Obama and a bipartisan group of senators are eager to pass an immigration bill this year, with their main points of disagreement, deliberated in public and in private, centering around topics like border security, guest-worker programs and how long undocumented immigrants should have to wait before gaining citizenship.

There’s one issue, however, both sides agree on: The nation’s 11 million illegal immigrants will need to speak and write in English before they can earn permanent legal status, commonly referred to as a green card. And therein lies a barely discussed problem with the potential to overwhelm states and put up a barrier to immigrants who want to legalize: The nation’s English as a Second Language system may not be up to the task.

Those familiar with the issue say the woefully underfunded adult ESL system would face challenges that could stretch it to its breaking point. They include the influx of millions of new students, a severe lack of clarity around funding, and the need for more flexible learning situations, as many immigrants—who often work several jobs—will find it difficult to attend classes.

The current ESL system is “cobbled together with toothpicks and Band-Aids,” said Paul Musselman, the president of Carnegie Speech, a virtual learning company that makes language software.

It would be “insane” to require illegal immigrants to learn English, added Leslie Robbins, the executive director of Riverside Language Program in Manhattan, which teaches legal immigrants intensive English courses. For one, she noted, the system is already overloaded. “There’s not enough funding currently to deal with the numbers of people who both need and want English-language instruction,” she said.

And Margie McHugh, an expert on immigrant integration issues at the Migration Policy Institute think tank, noted that “the idea that somehow the system could accommodate 11 million new people is beyond anyone’s imagination.”

McHugh estimated that, without schooling, about 55 percent of undocumented immigrants wouldn’t be able to pass the English portion of the U.S. citizenship test—which requires someone to understand English phrases when spoken to slowly and with repetition—if it were given today. That means about 4 million to 5 million people could simultaneously need instruction under the immigration reform law.

Politicians want to add a stricter English requirement in the reform bill in part to make sure undocumented immigrants are integrating and able to succeed economically. Immigrants who speak English well earn on average between 10 and 24 percent more than immigrants who don’t, according to several studies, which means providing effective English courses could have a huge economic impact for the country as a whole and immigrants themselves. (Legal immigrants to the U.S. are not required to learn English to gain a green card, but must pass an English test in order to become citizens.)

But the current system in place for teaching English to the nations’ immigrants—state- and federally-funded classes provided by a patchwork of community colleges, public libraries and other community organizations—has been hit hard by state budget cuts since the recession began. Nationwide, 1.1 million people were enrolled in ESL courses in the 2006-2007 year, compared with just 730,000 people last academic year due to those cuts.

States may end up shouldering hefty costs associated with immigration reform if lawmakers don’t explicitly reimburse them in a bill. In 1986, Congress promised to reimburse state and local governments $4 billion in costs associated with the amnesty program, including providing adult ESL classes.

But even if the money’s there, existing ESL classes on average have not proven to be all that effective at teaching its students English, in part because many immigrants don’t have the time to attend classes frequently enough to make a difference.

Some techies as well as immigrant advocates, however, are hoping new language-learning software and online courses could help solve some of the issues, softening the blow to the ESL system if immigration reform passes.

“We need to get out there that there has to be a different way for people to learn English fast and with digital skills,” said Ada Williams Prince, the policy director for OneAmerica, a nonprofit immigration advocacy group. “It’s not enough to sit people in an ESL class.”

A handful of colleges and community organizations are already experimenting with lower-cost digital ESL classes that use free online language programs instead of costly textbooks. They also allow teachers to have larger classes or, in at least one case, remove the need for ESL-trained teachers altogether.

A Gates Foundation-funded pilot program in Washington state—with the help of OneAmerica—taught 250 immigrants English in a 13-week program last year using free language-learning software provided by Livemocha, a Rosetta Stone-like online tool. Students were each given a laptop with a permanent Internet connection and worked in class with the help of a tech coach, but no formally trained ESL teacher. They also spent hours of their own time using Livemocha at home, with the goal of learning both digital and English skills at once.

This fall, another online ESL pilot program funded with $3.5 million by the Gates Foundation will begin in 10 community colleges, also in Washington. The colleges, partnering with Livemocha, will create an interactive curriculum including video and text chatting with native English speakers as a way to improve conversational skills. Each student will be given a laptop or tablet, but this time they’ll be assisted by trained ESL teachers and tech coaches in classrooms.

The colleges hope the program will eventually be cheaper than traditional ESL classes, despite the costs of computers. They also hope the digital approach will be more effective than their previous textbook-based ESL classes, which have had a dismal track record of moving students to higher levels of English.

“We don’t believe it is more expensive to put technology in the hands of students than it is to put really not very exciting books in the hands of students,” Kathy Cooper, a policy associate at the Washington State Board for Community & Technical Colleges, said.

These types of online language programs weren’t available 25 years ago when Congress passed the Immigration Reform and Control Act of 1986, which required the 2.7 million undocumented immigrants who were legalized under that law to enroll in at least 40 hours of English courses before obtaining green cards. No one knows how effective these courses were, because immigrants were not required to take a test at the end of them. But experts estimate it takes about 600 hours of instruction for someone to move from the bottom levels of English understanding to a conversational competence, which suggests 40 hours would not do much toward helping someone become fluent.

The Department of Education would have final say on which ESL classes are approved, but experts think it’s possible it could approve online classes.

“I’m sure that if they go with a 40-hour seat time requirement that many people would try to come up with an online way for folks to fulfill that,” said the Migration Policy Institute’s McHugh. She added that the Department of Education would have to create “appropriate safeguards” to make sure the programs were high-quality.

Of course, the digital divide creates its own share of problems: Immigrants are far less likely than nonimmigrants in the U.S. to have access to a computer or Internet connection. (That wouldn’t be an issue if students are provided with computers as they are in the Gates-funded programs.)

Some in the ESL field also cautioned that digital-language programs may make instruction better and more efficient, but it will not replace the need for a qualified teacher and classroom.

“When we use technology it’s an enhancement, not a replacement,” said Helene Rubenstein, the coordinator for ESL programs at the School of Visual Arts in Manhattan.

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Nicklaus Misiti on Possible Immigration Reform Delay

When President Obama and Democrats in Congress say they want to pass a comprehensive immigration-reform bill this year, it’s actually possible that they mean exactly what they say. But in Washington, where taking a statement at face value is the mark of a rube, there’s speculation that, deep down, the Democrats would rather “save the issue” — tweak the process in some way that would make Republican opposition inevitable, then use the failure of reform as a weapon in 2014.

That suspicion spiked over the weekend when details of a White House immigration proposal lit up the news sites in time to be squabbled over on the Sunday-morning talk shows. The Administration strongly denied it was tossing a wrench into delicate congressional negotiations, but remember what we just said about taking statements at face value. Republican Senator John McCain of Arizona, a key figure on immigration policy, smelled a rat: “Does the President really want a result?” he asked on Meet the Press. “Or does he want another cudgel so he can beat up Republicans to get an advantage in the next election?”

So are Democrats secretly maneuvering to save the issue of immigration? Are Republicans cynically accusing the Democrats of trying to save the issue as a way of shifting blame should reform fail? “Oh, what a tangled web we weave,” the writer Walter Scott famously wrote, “when first we practice to deceive.”

Of course, the only way to prove conclusively that an issue is not being saved is to reach a compromise and pass a bill. And members of Congress who are participating in bipartisan talks on immigration say they are making progress and a real solution remains possible. But if the issue is saved for the next election, don’t be surprised if the federal courts get involved. A lawsuit pending in Fort Worth asks a U.S. district judge to render President Obama’s 2012 Executive Order on immigration null and void.

The order, circulated by Department of Homeland Security Secretary Janet Napolitano, was designed to implement large parts of the Dream Act — despite the fact that Congress never passed the act. Immigrants landing in the U.S. illegally as children would not be deported as long as they met certain virtuous benchmarks: going to school, serving in the military, staying out of jail and so on. U.S. Immigration and Customs Enforcement agents were instructed not to initiate legal proceedings against so-called Dreamers. In the view of 10 of the agents, this amounts to ordering them to break the law. Legislation passed in 1996 can be read as requiring agents to open formal proceedings against immigrants who can’t prove their lawful status.

“The directive commands ICE officers to violate federal law,” says the complaint, which was written by attorneys Kris Kobach of Kansas and Michael P. Jung of Texas, a formidable and conservative pair. The order also “commands ICE officers to violate their oaths to uphold and support federal law … unconstitutionally usurps and encroaches upon the legislative powers of Congress … and violates the obligation of the executive branch to faithfully execute the law.”

The government tried scoffing at the lawsuit — which has been joined by the State of Mississippi and its governor, Phil Bryant. (Failure to enforce the law will cost the state millions in benefits for the Dreamers, the state maintains.) But U.S. District Judge Reed O’Connor ruled this month that the agents have standing to sue and set a hearing on the complaint for early April. There, the Administration’s lawyers are likely to argue that a department operating with limited resources to address a vast problem must have freedom to set priorities. And that the President is justified in deciding that otherwise law-abiding immigrants, who did not choose to enter the country as children, should not be an enforcement priority.

For the judge to side with the agents would “pose a safety risk by diverting much needed resources from the removal of aliens who are serious criminals, repeat offenders or who otherwise pose national security risks,” the government warns.

It’s all moot if Congress passes a new immigration act that deals with the Dreamers. ICE agents will, presumably, be instructed to enforce the provisions of the reformed law, and the Executive Order of 2012 will be packed off to the National Archives. Issue resolved — if such a thing is still possible in Washington.

Contact the Law Offices of Nicklaus Misiti at (212) 537-4407 or fill out the form on his website,  Attorney Nicklaus Misiti practices criminal immigration law throughout the state of New York and has experience with immigration reform.

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Nick Misiti Explains H1B Visa Requirements

The H1B visa is a work permit issued to a temporary non-immigrant in the United States. According to the U.S. Citizenship & Immigration Services (USCIS), a temporary worker is an individual seeking to enter the United States temporarily for a specific purpose. Non immigrants enter the United States for a temporary period of time, and once in the United States, are restricted to the activity or reason for which their nonimmigrant visa was issued. The visa allows the visa holder to live and work on a temporary basis in the U.S.

Another interpretation of the H1B visa is presented here. The “H1B” visa program is a temporary workers visa in “specialty occupations.” A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, business studies, etc.)

In order to qualify for the H1B visa category, the prospective H1B employee must:

  • Hold a U.S. bachelor’s or higher degree, or the equivalent. The person must hold a U.S. equivalent 4 years bachelor’s or higher degree from an accredited college or university.
  • If the foreign degree is 3 years bachelor’s degree, a 3 years work experience in same or similar field /occupation can be considered to one year of additional education.
  • The individual must be fully qualified to lawfully perform the duties of the position offered. For example, in occupations that require a licensure or professional credentials (such as doctor, dentist, attorney, CPA, architect, registered nurse), the individual must already hold such qualification before the H1B visa petition can be filed.

There are several areas and categories which may qualify for specialty occupation, including:

  • Engineers
  • Doctors/Physicians
  • Managers
  • Financial Manager
  • Analyst
  • Business Managers
  • Sales Managers
  • Art
  • Entertainment
  • Lawyers
  • CPA
  • Architect
  • Health Care professionals
  • Technicians
  • Others
  • Currently H1B Total Quota is 65000 for all the qualified people worldwide. The USCIS accepts new H1B petitions from April every year.
  • There is an additional 20,000 quota for qualified people who have completed a Masters degree from USA. This quota is independent of the general quota of 65,000.

Obtaining the H1B visa is like the art of matchmaking. You have to be a right fit for a right job. The process is similar to finding the right spouse for you. Obtaining an H1B visa involves the following steps:

  • Find an employer in USA who can offer you a job.
  • Once you qualify for the job, your future employer files H1B petition for you with govt. authorities the Department of Labor and the U.S. Citizenship & Immigration Services (USCIS).
  • Once the petition is approved, you are eligible to enter US to work and live on H1 visa.

While the above list appears simple, finding a US based employer/company that requires your skills for a job and is willing to sponsor the H1 visa is most critical part of this process. Not all U.S. companies sponsor the H1 B visa. They would rather hire someone ‘locally’ rather than go through all the formalities of filing visas. This means that the number of companies that hire foreign workers on the H1B visa is very less. At the same time, there are many highly skilled jobs that require hiring individuals with a unique skill set.

Contact the Law Offices of Nicklaus Misiti at (212) 537-4407 or fill out the form on his website,  Attorney Nicklaus Misiti practices criminal immigration law throughout the state of New York and has experience filing H1B visas.

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440 Motions to Vacate a Criminal Conviction and Immigration

Although not filed in immigration court, a 440 motion to vacate a criminal conviction can prove to be very useful in immigration proceedings.  This is because many individuals are convicted of charges that leave them with little to no immigration relief, such as aggravated felonies or drug trafficking crimes.  If that conviction no longer appears on their record they may have many options to remain in the US.

A successful motion to vacate will make it as if the conviction never occurred and may allow the alien access to many types of immigration relief that were not previously available, such as adjustment of status, asylum, cancellation of removal or many others.

The most common reason to vacate a conviction in the immigration context is under the recent Supreme Court case Padilla v. Kentucky.  In that case the Supreme Court ruled that a criminal attorney has the duty to advise a non citizen of any immigration consequences that would result from a plea they accept.

The Supreme Court reasoned that it is not effective counsel if the criminal attorney does not properly advise their client of any immigration consequences they will suffer as a result of the plea.

The successful 440 motion must show that the alien was not advised of any immigration consequences or was misadvised and that this failure prejudiced their decision to take the plea.  In order to show the ineffective assistance prejudiced their case, they must show that they otherwise would not have accepted the plea had they known of the immigration consequences.

The motion must be filed in the same court where the alien was convicted, it should also be served on the District Attorney’s office or it will not be considered to have been properly filed and will be dismissed.   In certain cases the district attorney will be willing to negotiate a new more favorable plea or simply throw the conviction out.  In other cases they will not be willing to do this and the judge will determine the merits of the case with or without a hearing.

There are many substantive and procedural hurdles which must be met to get the conviction vacated.  It is not enough that you were not properly advised by your criminal attorney; you must also prove this and follow all the rules and regulations of the court.  As such it is extremely important that these applications are prepared by an experienced attorney.  It is also useful if that attorney has experience and knowledge of the immigration laws because often the criminal court judge and staff have only limited knowledge and it will do a world of good if they can explain in simple terms the immigration consequences you are suffering as a result of the plea in simple terms.

For More Information

Contact the Law Offices of Nicklaus Misiti at (212) 537-4407 or fill out the form on his website,  Nicklaus Misiti practices criminal immigration law throughout the state of New York and has experience in effectively dealing with criminal immigration issues and in filing motion to vacate.

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Finally: The Final Rule for the Family Unity I-601A Provisional (Stateside) Waiver Released

On January 2nd, 2013 Homeland Security Secretary Janet Napolitano announced the posting of the long awaited final rule establishing a process that allows certain inadmissible individuals to become residents of the United States should they qualify for a waiver.  The big change is the rule will allow applicants to apply for the waiver without leaving the United States, thus, significantly reducing the length of time immigrant families are separated.

The law is designed to avoid extreme hardship to US citizens who may have relatives whom entered the United States without inspection or “illegally.”

The prior processing of the waiver applications required the applicant to leave the United States and wait outside the US, possibly for a significant amount of time, and with no guarantee they would be allowed to return.

Under the new process, immediate relatives must still depart the United States for consular processing but they can apply for the provisional waiver before they depart for their interview abroad. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

In order to obtain the waiver, the applicant must be an immediate relative of a U.S. citizen, such as a spouse, parent or child under 21 years of age.  They must be inadmissible only on account of unlawful presence, in other words the waiver will have no effect on certain criminal convictions or other inadmissibility grounds.  Finally, the successful applicant must demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen relative. To determine whether you meet these requirements it is imperative you speak with an immigration attorney before applying.

USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for use when applying.  It should also be noted that hardship waivers are extremely difficult to obtain and should not be attempted by a novice.  It is crucial that anyone wishing to apply discusses their potential claim with an attorney before filing and utilizes an attorney should the decision be made to apply.

Filing of these applications will begin on March 4th, 2013 and as with any complicated application it will take time and hard work to prepare all of the evidence and forms.  Interested parties may wish to reach out to their immigration attorney before this date, so the application can be prepared and submitted as soon as possible.  USCIS plans on releasing more information on this exciting change to immigration laws in the upcoming weeks.

For More Information

Contact the Law Offices of Nicklaus Misiti, PLLC at 212 537 4407 or via their website at for a case evaluation and to begin the process of preparing your application.  Nicklaus Misiti is an immigration attorney headquartered in New York, NY who handles hardship waivers throughout the United States.

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U Visa: One of the Most Powerful Tools in Immigration Law

Many people are aware of family-based and employment-based petitions. It is also common knowledge that certain immigrants with a criminal record may be barred from immigration relief as a result of such crimes. Something that is less widely known is the existence of a powerful tool called the U-visa or I-360 petition. The U visa was created to assist immigrants, including undocumented immigrants, who were victims of certain serious crimes. The visa gives applicants temporary legal status and work eligibility in the United States for up to 4 years. Once a U visa is approved, it automatically grants the applicant an Employment Authorization Document, which can be used to obtain a Social Security Number.

An application for the U-visa is filed with Form I-918; the applicant must show that they (1) were a victim of a serious crime enumerated in INA S. 101 (a) (15) (U) (iii); (2) suffered substantial physical or mental abuse due to such crime and (3) assisted in the investigation and/or prosecution of the individual(s) that committed the crime. This is shown by attaching
a statement from a person designated to issue U nonimmigrant certifications from a Federal, State or local law enforcement agency that was in charge of the investigation in which the applicant was the victim or the head of the agency.


Here is why this visa is so powerful: the U-visa does not require a sponsor; an immigrant can self-petition. Even immigrants that have a deportation orders against them or those that are outside the U.S. are eligible, as long as the qualifying crime was committed while the immigrant was in the United States.  Once the U visa is approved the applicant can file a motion to reopen the deportation order with the Immigration Court (or a Stay to the deportation if they are about to be ordered deported).  Inadmissibility due to criminal history will not bar an applicant from relief. Every ground of inadmissibility could be waived for the U visa applicant if the secretary of homeland security deems it in the national interest so to do. INA S. 212 (d) (14).   The only exception is for Nazis, genocide perpetrators, or persons who took part in torture or extra judicial killings. As with most waivers, availability may not necessarily mean a grant. It still remains an exercise of discretion. After three years an immigrant in U visa status can apply for adjustment of status (green card). The best part? There is no filing fee for applicants for the U visa.

If you are an immigrant who was a victim of a crime, please call our office to schedule a consultation to discuss your eligibility for a visa.

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