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Practicing immigration law for over 25 years.


Our practice is devoted to representing individuals and institutions in all areas of immigration law, with a focus on employment-based immigration for professionals, managers and investors.

Our core practice area includes H-1B and L-1 visa petitions, E-1 and E-2 Treaty Trader and Investor applications, EB-5 Immigrant Investor petitions, E-2 Investor Visa applications, Labor Certification Applications and EB-1 Extraordinary Ability petitions.  Mr. Maciá also has extensive experience in asylum applications, consular processing, asylum and deportation defense, family petitions, naturalization, and employer compliance.

Mr. Maciá is a member of the Florida Bar and the American Immigration Lawyers Association and is admitted to practice before the Eleventh Circuit Court of Appeals and the U.S. District Court for the Southern District of Florida.  He is a graduate of the University of Florida College of Law where he served as Senior Managing Editor of the Florida International Law Journal.  He holds a Bachelor’s degree in political science from the University of Chicago.  Prior to establishing his own firm in 2008, Mr. Maciá headed the immigration practice group for a national law firm with over 250 attorneys.

Seminars and presentations:

“Immigration Law for the Employment Lawyer”, The Florida Bar webinar, 2013

“The Cuban Adjustment Act”, St. Thomas University School of Law seminar, 2006

“Overview of U.S. Immigration Law Relating to Cuba”, St. Thomas University School of Law seminar, 2001

“Asylum Law and Procedure” Florida International University Paralegal Studies Program presentation, 1999

“Immigration Requirements for Human Resources Professionals”, Florida International Bankers Association presentation, 1998

Our core practice area includes EB-1 Extraordinary Ability Petitions, EB-2 National Interest Waiver Petitions, H-1B and L-1 Visa Petitions, E-1 and E-2 Treaty Trader and Investor Applications, EB-5 Immigrant Investor Petitions and Labor Certification Applications, asylum applications, consular processing, asylum and deportation defense, family petitions, naturalization, and employer compliance

Aliens of Extraordinary Ability

Persons with extraordinary ability in sciences, arts, education, business or athletics are eligible for an immigrant visa in the EB-1 category.

Professionals and Managers

Business professionals seeking employment in the U.S. may be eligible for nonimmigrant work visas in the H-1B and L-1 visa categories.

Asylum and Removal Defense

Asylum seekers may file an affirmative I-589 Asylum Application with the USCIS Asylum Office.  Asylum seekers whose applications are not approved by the Asylum Office, and who have failed to maintain a lawful status, are “referred” to Immigration Court for Removal Proceedings.  Respondents in Removal Proceedings before the Immigration Court may renew their I-589 Asylum Application as a defense to deportation.  Asylum seekers may be ineligible for a grant of asylum if they fail to file the I-589 within one year of admission to the US or if they have been convicted of a serious crime.  In these cases, Respondents may still obtain relief from deportation in the form of Withholding of Removal under the Convention Against Torture or CAT.

EB-5 Investors

The EB-5 Immigrant Investor program provides a direct path to Lawful Permanent Resident status.  EB-5 classification is available to entrepreneurs who actively manage their own business as well as investors who invest in accredited Regional Centers.

Family-based Immigration

“Immediate Relatives” are defined in the Immigration and Nationality Act as spouses, parents and children (unmarried and under 21) of U.S. citizens.

Student Visa

International students and their dependents are eligible for F-1 and F-2 visa classification.  The F-1 visa is available for academic programs from elementary school through graduate school.  F-1 status is also available to students in qualifying English language study programs.

Aliens of Extraordinary Ability

Persons with extraordinary ability in sciences, arts, education, business or athletics are eligible Lawful Permanent Resident status in the EB-1 category. The petitioner is required to demonstrate sustained accomplishment and acclaim in their area of expertise.  The petitioner must show that these achievements have been recognized by experts in the field.

Evidence must include documentation in at least three of the following categories:

·         Receipt of nationally or internationally recognized prizes or awards.

·         Membership in associations in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.

·         Published material about the person in professional or major trade publications or other major media.

·         Participation as a judge of the work of others.

·         Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

·         Authorship of scholarly articles in the field.

·         Artistic exhibitions or showcases.

·         Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.

·         High salary or remuneration in relation to others in the field.

·         Commercial success in the performing arts.

Naturalization and Citizenship

       A.  Applications for Naturalization

Naturalization is the process by which a person applies for U.S. citizenship, as opposed to deriving citizenship automatically at birth.  The standard requirements for naturalization are:

·         The applicant must be a Lawful Permanent Resident.

·         The applicant must be 18 years of age.

·         The applicant must have 5 years of continuous residence in the U.S. after obtaining permanent resident status.  (The residency requirement is 3 years if the applicant is married to a U.S. citizen.)  Certain Armed Forces veterans and overseas employees of U.S. companies are exempted from the residency requirement.

·         The applicant must be physically present in the U.S. for at least half of the required residency period.

·         The applicant must be a person of good moral character for the statutory period (5 or 3 years) prior to filing.

·         The applicant must pass exams testing knowledge of English and U.S. government and history.

Permanent Residents with extensive travels, or criminal convictions, or who lack English fluency, should carefully analyze the statutory requirements before applying for naturalization.

       B.  Derivative Citizenship

Derivative citizenship can be acquired automatically by birth abroad to one or more U.S. citizen parents.  In some cases, there are additional transmission and retention requirements.  The Child Citizenship Act of 2000 provides derivative citizenship for Lawful Permanent Resident children upon naturalization of a parent.
















EB-2 National Interest Waiver

The EB-2 Category for Aliens of Exceptional Ability has a lower evidentiary burden than the EB-1 category, but requires more detailed argument and evidence of national interest benefits. In December 2016 the USCIS Administrative Appeals Office published the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which established a new analytical framework for National Interest Waivers under INA 203(b)(2)(B)(i).  Dhanasar replaced the old NYSDOT framework with a new test intended to provide guidance and promote flexibility in NIW petition adjudication.  The Decision specifically notes that the EB-2 NIW category is underutilized by qualifying entrepreneurs and self-petitioners.

The Dhanasar decision requires the NIW petitioner to satisfy three elements by a preponderance of the evidence:

·         That the foreign national’s proposed endeavor has both substantial merit and national importance;

·         That the foreign national is well positioned to advance the proposed endeavor; and

·         That, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Professionals and Managers

Business professionals seeking employment in the U.S. may be eligible for nonimmigrant work visas in the H-1B and L-1 visa categories.

H-1B Visa

The H-1B visa allows the beneficiary to work for a U.S. employer petitioner in a “specialty occupation” for a three year period. This period of stay can be extended for another three years, and in some cases, beyond six years.   To establish eligibility, the beneficiary must have a Bachelor’s degree, or its equivalent, in the relevant professional field.  The petitioning employer must show that it requires professional services in this field, and that it will pay the prevailing wage for position offered.  H-1B visas are currently subject to strict numerical limitations.  The application window is restricted to the first week of April, and petitions must be selected in a random lottery before the case is even adjudicated.  Petitions that are not selected are returned to the petitioner.

L-1 Visa

Executives and managers of multinational companies may be transferred to the U.S. to establish a new affiliate or to direct existing operations.  The L-1A visa category allows these transferees to remain in the U.S. for up to seven years, with periods of stay authorized in one to three year increments.  The U.S. and overseas affiliates must be “qualifying organizations” with common ownership and control.  Also, the transferee must have worked for the overseas affiliate as a manager or executive for at least one year in the three years prior to filing the petition.  Although the L-1 is a temporary visa, there is a corresponding immigrant visa category for multinational transferees providing an avenue for permanent residence which bypasses the Labor Certification process. The L-1B visa subcategory provides another option for transferees with “specialized knowledge”.

Labor Certification

The purpose of the Labor Certification Application is to obtain a certification by the U.S Department of Labor (DOL) that there are no available U.S. workers for a given position.  This certification is usually a prerequisite to filing an Immigrant Petition with U.S. Citizenship and Immigration Services requesting permanent residence classification on behalf of the alien worker.  The alien worker, and family members, may file an Application for Adjustment of Status to LPR status concurrently with the Immigrant Petition, or when their priority date becomes current if visa numbers are backlogged.

There are many advantages to obtaining Lawful Permanent Resident status.  LPR status does not have to be renewed and does not lapse – although it may be abandoned.  The LPR may apply for U.S. citizenship after five years.  A visa is no longer required to enter the U.S.  The company is relieved of certain record-keeping requirements associated with the H-1B visa.  Documentation of I-9 employment authorization compliance is also facilitated.

Employment-based petitions for LPR status based on a job offer from a U.S. company or organization typically require three steps: the Labor Certification Application, the Immigrant Petition, and the Application for Adjustment of Status. The following discussion describes the three steps and provides information regarding the company’s involvement in each phase.

·         Labor Certification Application

The first step in the process is to obtain a Labor Certification from the Department of Labor.  This process, commonly referred to as PERM, involves establishment of a recruitment program consisting of the publication of ads and notices in various media. We can Help develop a recruitment campaign that will meet the PERM requirements.  Initially, we would identify and evaluate any recent recruitment efforts including published advertisements, Internet ads, college recruitment, job fair participation, and employee referral programs.

 

Under the PERM regulations, the company must define the minimum requirements for the position offered.  Job requirements must be the actual minimum requirements for the position. Each requirement must be justified in relation to the job description. Requirements other than those essential to perform the job duties in a reasonable manner will be considered unduly restrictive by the Department of Labor, and generally, will be disallowed.

The Labor Certification is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill the position offered to the sponsored alien employee, and that the company will pay the employee the prevailing wage.  Therefore, any promotions or significant changes in job duties or location before permanent residence is obtained may invalidate the labor certification.  If any promotions or changes in job title, job duties, or job location are contemplated for the alien beneficiary, these should be discussed with counsel before starting the labor certification process.

·         Immigrant Petition

Upon receipt of an approved labor certification, the petitioning company files an I-140 Immigrant Petition on behalf of the employee.  The petition is submitted to USCIS along with the labor certification documents and documentation of the company’s ability to pay the prevailing wage.  Documentation verifying that the employee meets all of the minimum requirements listed in the labor certification is also required.

·         Application for Adjustment of Status or Consular Processing

The last phase of the process is the employee’s I-485 Application for Adjustment of Status. USCIS allows concurrent filing of the visa petition (Step II) and the Adjustment of Status Application (Step III) if the priority date is current.

If the Beneficiary of the Labor Certification is outside the U.S., or is otherwise ineligible for Adjustment of Status, an Immigrant Visa may be requested at the Consular Section of a U.S. Embassy abroad.  Consular Processing of the Immigrant Visa may be faster than Adjustment of Status due to recently enacted personal interview requirements for adjustment applicants. There are significant backlogs in many employment-based visa categories resulting from retrogressed priority dates.

Family-Based Immigration

·         Immediate Relatives

“Immediate Relatives” are defined in the Immigration and Nationality Act as spouses, parents and children (unmarried and under 21) of U.S. citizens.  These family members are not subject to quotas and certain grounds of inadmissibility.  Immediate relatives may adjust status to permanent residence even if they have overstayed their period of admission.  They are exempt from other grounds of inadmissibility and may waive some of the grounds that do apply.  Typically, the U.S. citizen spouse will file an I-130 Petition for Alien Relative concurrently with the alien spouse’s I-485 Application for Adjustment of Status.  This concurrent filing allows both parties to remain in the U.S. until the case is approved.  The alternative to adjustment of status in the U.S. is immigrant visa processing at a U.S. Embassy abroad.  Consular processing is required where the alien relative is outside the U.S. or is ineligible for adjustment of status.

·         Preference Petitions

Family members who are not Immediate Relatives may be eligible for permanent residence on the basis of a preference petition.  These relatives include adult sons and daughters of U.S. citizens, spouses and children of U.S. Permanent Residents, and siblings of U.S. citizens.  However, these visa categories are subject to numerical limitations, with waiting times ranging from several years to over a decade.  Visa availability can be tracked at the State Department’s Visa Bulletin.

Student Visa

The period of admission in F-1 status is generally for “Duration of Status” or “D/S”, in contrast to most nonimmigrant visas which expire on a certain date.  This allows international students greater flexibility in extending their stay and in changing programs of study.  The F-1 category also allows for a change of status to other nonimmigrant categories.  A typical scenario involves F-1 students graduating from college who then seek the H-1B employment visa for professional workers.  Another option for F-1 college graduates is Optional Practical Training or “OPT” status, which provides an additional year of lawful status and employment authorization after graduation.  STEM majors can request even longer periods of OPT status.

Prospective students must obtain a Form I-20 from the educational institution prior to requesting the F-1 visa.  The Form I-20 is issued by a Designated School Official who certifies details regarding the program of study, acceptance of the applicant into the program, and ability to pay for the costs of the program, including room and board.  With exceptions for Curricular Practical Training, F-1 students may not seek employment, and must show that they have available funds to pay tuition and other costs.

International students may be eligible for other nonimmigrant visas. The M-1 visa category is available to pursue vocational studies.  Post-graduate students, interns and trainees may also seek J-1 visa status.  However, the M-1 and J-1 categories often are less flexible and may restrict changes of status to other visa categories.

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