Visa Lawyer Blog

E2 Visa Lawyer - U.S. Senate unanimously passes E-2 visas Bill for Israeli Investors

Sun, 27 May 2012 21:59:40 -0800

Since the passage of the E2 Investor Visa Bill by the house in March, many Israelis have been calling my office asking when can they finally move here and start the business of their dreams. Well,the Senate passed the bill by unanimous voice vote last week. It had been unanimously passed the U.S. House of Representatives on March 19 and now heads to President Obama for his signature.

The measure added Israel to the list of countries eligible for E-2 investor visas. Once signed into law by President Obama, as expected, the bill will put Israel on a list with more than 79 other countries whose citizens are eligible for the visas.

The Embassy of Israel in Washington applauded the passage of legislation, saying it enables "Israeli nationals to make large investments in the U.S. economy, creating many additional jobs for Americans.

As the US Economy continues to recover,many Israelis would want to come to the US and start their own businesses via the E2 visa investment.

This is also known as the nonimmigrant investor visa. It is a temporary category that is granted in two-year to five year increments with no limits on the number of extensions. The E-2 category is available to citizens of countries that have a treaty of trade or commerce with the U.S. such as the Holland, France and the UK. The State Department does not require any specific size investment. Rather it says the business owner must invest a "substantial amount of capital" that generates "more than enough income to provide a minimal living for the treaty investor and his or her family.".

An E-2 allows treaty nationals to manage investments that are at least 50% Treaty Country owned. The visa requires that the U.S. investment be substantial and generates a substantial income. While there are no hard and fast figures on what the minimum investment amount is, the USCIS generally require a business investment of $50,000 or more, but the investment amount depends on the nature of the business. For example, opening up a restaurant in downtown San Diego would require 500,000 dollars while opening up a Catering business firm may only require start up costs of $50,000. This is why there is no fixed figure on a minimum investment amount.

The E-2 investor must show that its return on investment is more than what is necessary to merely support the investor in the U.S.

E-2s may include intercompany transferees in management or specialized knowledge positions. For example, an Israeli Hotel manager may be transferred on an E-2 visa to the U.S. to fill a management position. The company must be majority owned and controlled by citizens of France. The manager does not have to be an owner of the company. Unlike the H-1B, the E-2 visa holder’s spouse can also obtain work authorization for the duration of their E-2 status. He or she may then work anywhere.

The E-2 visa is beneficial to many who wish to work and conduct business in the U.S. It is not limited to just the owners of companies, but may be used by their managers and specialized knowledge workers. The process for obtaining an E-2 is complex and should not be attempted without a qualified immigration lawyer.

Please email us with any questions on the E2 visa and sign up for our updates as we are awaiting the President to sign this Bill.

Success story family reunited after 10 years of separation I-601 and I-212 Waivers approved!

Fri, 25 May 2012 11:28:21 -0800

With the upcoming Provisional Waiver changes, as well as the, June 4, 2012 change to allow mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility, we have to remember that Waivers are complicated and frustrating to handle. But his article, prepared by attorney Ekaterina Powell from our office will focus on a success story we are happy to share.

For many, immigration to the United States through marriage to U.S. citizens is an easy process that leads to permanent residency within 6 months. For others, the road to permanent residency in the U.S. is a thorny one, consisting of years of separation, extreme hardships suffered by the family members, followed by administrative delays, immigration backlogs, and struggles as they go through the immigration system.

Our firm is especially happy when we are able to help our clients in a particular difficult case which results in another family being reunited.

This time, we would like to share with you a success story of a case that our firm had a pleasure to work on – after more than 10 years of separation from his family, Enrique was finally reunited with his family!

This is a story of a brave family that has gone through 10 years of separation, financial struggles, desperation, but has carried on hope that the father will be reunited with his wife and two children in the United States. Not every marital union sustains for 10 years, especially when the couple is forced to build their family while being separated for all this time. Only the strongest and most admirable family unions can go through all the hardships and start their lives together again after 10 years of being apart.

Enrique is a citizen of Mexico. He first came to the U.S. in 1998 illegally to study English and work. In the fall of 1999, Enrique enrolled in adult English learning classes where he met Samantha who was an English teacher there. Soon after they met, the couple started dating. In December 1999, Enrique left the U.S. to visit his family in Mexico. He tried to come back to the U.S. in February 2000 by presenting someone else’s border crossing card, but was stopped at the border and ordered removed from the U.S. He was given a five year bar to enter the U.S. What the couple did not know at that point is that by presenting someone else’s border crossing card, Enrique became subject to a misrepresentation bar, waiverable only if Enrique proved extreme hardship to his U.S. citizen spouse if not allowed to immigrate.

In addition, since Enrique had been present in the U.S. illegally for more than 1 year and then tried to reenter the U.S. without being admitted, he became subject to another permanent bar, which could only be waived after Enrique spent 10 years outside of the United States.
However, at the time, Enrique and Samantha did not know about all that. They thought that they only have to struggle for 5 years, and then Enrique would be able to come back to the U.S. The couple decided to get married in a hope that they would be able to manage their relationship living in different countries for the next 5 years.

Samantha even tried moving to Mexico to be with Enrique, but she developed severe bronchitis condition, which was not effectively treated by the doctors in Mexico. Samantha could not get a teaching job there and was experiencing financial hardship. The house that the couple lived in got robbed. Scared for her safety, unable to manage her chronic illness in Mexico, Samantha returned to the U.S.

At that time, when 5 years had almost passed, Samantha sought legal help and found out that her family has to spend 5 more years before they can even try to bring Enrique to the U.S.
In order to be closer to each other, Samantha moved to San Diego while Enrique stayed in Tijuana. Despite living across the border, Samantha and Enrique decided to build a family together and have a child. Following the birth of their son, Samantha was working a full-time job as an elementary school teacher and crossed the border daily in order for her husband to take care of their son during the day while Samantha worked.

Samantha lived and worked in San Diego from 2006 to 2011 trying to raise her son the best she could with her husband living across the border. The life got harder when Samantha’s and Enrique’s son was diagnosed with autism and required special treatment that was unavailable in Mexico.

With Samantha’s full-time job, childcare, and crossing the border twice per day, she had only 4(!) hours of sleep each day. This grueling schedule began to wear on Samantha and impacted her ability to function efficiently at work and in the home. Samantha lost her job teaching and took a part-time position in the school office, a position that was less demanding but less paying.

After the couple had their second child, an unplanned pregnancy, the life has gotten even harder. Samantha started experiencing symptoms of severe anxiety and depression. Unable to cope with the situation by herself, desperate, Samantha moved to Mideast in the winter of 2011 to get some help from her parents. It was a devastating decision for Samantha to move away from Enrique. The children were not able to see their father anymore.

When Samantha came to our office, we started the immigrant visa case along with preparation of two waivers: 1) I-601 waiver application for misrepresentation bar and 2) I-212, permission to reapply for admission to the U.S., also known as a permanent bar waiver, available only after the applicant has spent 10 years outside of the United States.

With the case, we submitted extensive documentation to show that Samantha would experience extreme hardship if Enrique was not allowed to come to the United States. In our brief, we explained that Samantha would not be able to relocate to Mexico and that it would be equally impossible for her to continue living away from Enrique in the U.S.

With the case, we provided documentation to show that relocating to Mexico is not an option for Samantha due to her chronic illness that gets aggravated while she is there, due to unavailable special treatment for the child with autism, due to her inability to continue her career as an elementary school teacher, strong family and community ties in the U.S. and other important factors.

In our brief, we explained that special education for children with autism was unavailable in Mexico and that Samantha would suffer to see her child struggle with the condition without any means of helping him. If the child continues his treatment, he has a chance to develop the skills needed to lead a normal life, obtain employment and become independent. If he is unable to receive the treatment he needs, it will cause lifelong effects on his parents who would be forced to take care of and provide assistance to their son for the rest of his life because he would be unable to take care of himself. In addition, we provided documentation and explained that it would be impossible to raise a child with autism without both parents present.

With the case, we provided sufficient documentation and explained that Samantha was not able to continue living in the U.S. without Enrique and that she needed him to support the family and take care of the children.

Samantha appeared to be in a vicious circle. She could not maintain her job and support her family because she had to take care of her baby daughter and her son, who was in need of special autism treatment. Without a full-time job, Samantha would not be able to financially support her family. Enrique was working in Mexico giving guitar lessons and repairing remote control helicopters. He only made enough money to partially support himself and was not able to assist Samantha in providing for the children.

Samantha has already tried to live away from Enrique, trying to juggle her full-time job in order to support the family, taking care of the baby and her child with autism, helping her parents who were in poor health condition, without anyone’s support. She is no longer capable to support her family by herself. Samantha does not have anyone else she could rely on except her husband. If Enrique is not allowed to immigrate, Samantha will not be able to maintain her job, afford special intervention services for their son, and will not be able to take care of their baby daughter.

Due to her overwhelming parenting responsibilities, demanding job duties, special needs of her son, Samantha has developed major depressive disorder symptoms and severe anxiety. Samantha was no longer able to cope with her life without Enrique.

Enrique appeared for a waiver interview at the U.S. Embassy in Ciudad Juarez in the summer of 2011 and submitted both of his waivers. Within a month, I-601, misrepresentation waiver was approved. However, we have not heard anything about I-212 for several months. After numerous attempts to contact Ciudad Juarez, they let us know that they did not have a record of I-212 submitted and that we had to submit it again in the U.S. We resubmitted the waiver to USCIS with the jurisdiction over the matter.

After months of waiting for the response, USCIS let us know that due to intra agency transfers, they were still waiting for Enrique’s file to come from Ciudad Juarez. The case was sitting in the piles of hundreds of other cases for several months, and none of our attempts to expedite adjudication of the case led to any results.

Meanwhile, the hardships experienced by the family have gotten even worse. Samantha’s parents were no longer able to help her with the children, Samantha could not take a job to support herself and her children and thought of applying for governmental financial help. For Enrique, the process felt like an endless string of madness, bureaucracy, frustration, desperation, and hope that all that will be well worth reuniting with the family.

Only after the interference of a Congressman, USCIS was finally able to locate the file, and I-212 wavier was adjudicated within 30 days. Last month, Enrique went to a follow up appointment in Ciudad Juarez where he was granted the immigrant visa.

Enrique is now back with his family. Seeing your child make the first step causes a tear in the eye of many fathers. Seeing the first years of the child’s life through a webcam would make any father cry. While being apart, Enrique missed many precious moments in the life of his children. He is now grateful that he is able to recoup the moments of happiness and start his life all over again with his family.

When we help our clients work their way through the immigration system to allow them to join their families in the United States, we feel the clients’ frustration with the immigration process, administrative delays, and their personal hardships. No words can express how happy we are to see that our client is finally able to immigrate to the U.S. and that another family is reunited after years of struggles and separation.

Adjudicators reviewing hardship waivers have hundreds of cases in front of them. For them, Enrique is one of the hundreds. Day after day reviewing hardship waivers, each case seems the same. Within the stacks of documents, the actual lives of people are lost and you cannot see their hopes and struggles.

It is our job as advocates for our clients to present each case in a way that an adjudicator can vividly see the people that stand behind the waiver and the hardships that the family has gone through for the years of separation.

If you need help immigrating to the U.S., our office will be happy to provide you with a free initial consultation and discuss the options available to you.

I-601 Waiver Attorney - Immigratio Service will start to Centralize Filing and Adjudication for Certain Waivers of Inadmissibility

Thu, 24 May 2012 10:53:55 -0800

Some great news to report for our readers. As you may know the processing of I-601 and I-212 waivers may take a very long time, often resulting is the separation of families.

If you are not familiar with Waivers, some foreign nationals may be deemed inadmissible under INA 212(a), which covers bases including unlawful presence, criminal violations, and immigration fraud or misrepresentation. If a foreign national is considered inadmissible, then he or she must obtain a waiver of inadmissibility if they are seeking lawful permanent resident status. Generally, in order to successfully obtain an I-601 waiver, you must prove "extreme hardship" to a qualifying relative is moved to the applicant's country, and that the qualifying relative can't remain in the US without the applicant. These hardships are also weighed against "mitigating and aggravating factors." Currently waiver cases are filed directly with specific US posts around the world resulting in different processing times depending on where the case is filed.

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. Consular Officer, will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Currently, applicants experience processing times from one-month to more than a year depending on their filing location. This centralization will provide customers with faster and more efficient application processing and consistent adjudication. It is part of a broader agency effort to transition to domestic filing and adjudication; it does not reflect a change in policy or the standards by which the applications are adjudicated. Individuals filing waiver applications with a USCIS Lockbox will now be able to track the status of their case online.

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an email or text message when USCIS has received their waiver request may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

How About Cases Pending in Ciudad Juarez?

During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, will have the option to either mail their waiver applications to the USCIS Lockbox in the United States or file in-person at the USCIS office in Ciudad Juarez. USCIS is aware of the pending caseload for applicants in Ciudad Juarez and is taking proactive steps to work through these cases. USCIS will significantly increase the number of officers assigned to adjudicate the residual cases filed before June 4, and those filed during the interim six-month transition period. USCIS has already begun to test this process and has transferred applications from Ciudad Juarez to other USCIS offices in the United States.

Please note that this change is separate and distinct from the provisional waiver proposal published in the Federal Register on Mar. 30, 2012.

Other Countries Boost Efforts to Lure Expatriots Away from the U.S.

Wed, 23 May 2012 16:13:10 -0800

The United States faces intense competition from foreign countries, especially China, who seek to persuade highly skilled citizens who have settled in our country to return home to start businesses there, according to a report released Tuesday by an immigration group led by Mayor Michael R. Bloomberg of New York.

“China is proving the most aggressive and ambitious” among the United States’ economic competitors in seeking to reverse a brain drain and lure back their scientists, engineers and entrepreneurs, the report by Mr. Bloomberg’s group, the Partnership for a New American Economy, found.

The report is broadly critical of the American immigration system, which says is slow, inflexible and not in sync with the nation’s labor needs. “Self-inflicted economic wounds” caused by the system, the report says, discourages foreigners from investing and blocks foreign students with advanced degrees from American universities from remaining here.

Two years ago, China started a program focused on “talent development” to draw in Chinese who studied or worked abroad, according to the report. China offers bonuses equivalent to about $158,000 to experienced university professors and researchers, particularly in the sciences and technology, who return to teach.

Returning scholars and business people are offered housing subsidies and even tax exemptions to locate new enterprises in government-designated districts. One program is designed to attract Chinese expatriates who hold overseas patents in specialized science fields, the report found. China is also recruiting Chinese managers in high-level positions in non-Chinese companies.

A review of the results of the Chinese program showed that 55 percent of Chinese who returned under its auspices came from the United States.

Last year, the study found, about 160,000 students from China were enrolled in American universities, more than from any other country, and they were far more likely than Americans to be studying engineering, science or technology. While the growth of American students in those fields is “among the lowest of any academic category,” the analysis reported, about 60 percent of foreign graduate students in this country in 2010 were enrolled in those subjects.

With limits on residence visas for foreign students graduating from American universities, thousands have been forced to leave in recent years. The United States has no visa for foreign entrepreneurs with novel ideas for starting businesses here, unless it is in the national interest and even that visa is incredibly difficult to meet the requirements.

Canada and other countries are also vigorously recruiting highly skilled foreigners trained in the United States who are frustrated with the cumbersome immigration system here, according to the report.

Singapore gives a one-year visa as well as matching funds to foreign entrepreneurs who invest $50,000, with the possibility of renewal. Chile offers work visas and subsidies up to $40,000 to technology entrepreneurs who go there to start businesses.

Mr. Bloomberg has been an outspoken advocate for immigration, saying it has been vital to the continued growth of New York. The report dismissed as a “short-term challenge” the lingering high unemployment in this country that has generated forceful resistance to expanding immigration in Congress.

In a move Tuesday that showed progress in the American system, but also highlighting its inefficiencies, U.S. Citizenship and Immigration Services, the agency that grants immigration documents, started a Web site where for the first time foreigners can apply electronically. Until now, all procedures have been done on paper.

Alejandro Mayorkas, the agency’s director, called the Web site a “significant milestone” in its history.

For now, though, the site will handle only one type of application, for temporary visitors who want to stay longer. The agency hopes all documents will be processed electronically “within the next few years,” said Christopher Bentley, an agency spokesman.

While the change by USCIS is significant to making the process less cumbersome and more manageable for foreign travelers, until those changes can also apply to helping retain talented individuals, the reverse "brain drain" will continue so long as the U.S. remains in a recession.

H1B Visa Cap Update May 18, 2012

Tue, 22 May 2012 16:10:50 -0800

USCIS has received approximately 42,000 H-1B petitions subject to regular-cap (for bachelor's degree holders) and 16,000 H-1B petitions subject to master-cap (for U.S. advanced degree holders).

Therefore, there are about 23,000 spots available under the regular-cap, and 4,000 spots left under the master-cap. Hurry and file fast.

AILA Wins Freedom of Information Act Litigation on H-1B Case Against DHS

Mon, 21 May 2012 16:31:52 -0800

The reliability and fairness of our immigration system can be evaluated only if the government’s procedures and activities are transparent. The American Immigration Lawyers Association (AILA), the Legal Action Center, and in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. There was significant public interest in these records because USCIS’s H-1B practices have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully.

On Friday, May 18, 2012, after protracted litigation, DHS and USCIS released unredacted copies of all of the documents sought by AILA. The history of the litigation went as follows:

The complaint brought by AILA alleged that DHS and USCIS violated FOIA when they wrongfully withheld information responsive to two FOIA requests and failed to timely respond to AILA’s requests. The complaint asked the court to enjoin defendants from continuing to withhold information relevant to the requests, to declare the requested records are not exempt from disclosure, and to award any other relief that the court deems just and equitable.

After the lawsuit was filed, DHS released eight pages of heavily redacted documents and filed a motion for summary judgment. AILA responded with a cross-motion for summary judgment, which prompted defendants to withdraw their motion and request additional time to search for responsive documents. DHS subsequently released additional records, but these records still did not meet the request made by AILA.

In late May 2011, AILA renewed its motion for summary judgment, arguing that DHS continues to improperly withhold responsive documents and have failed to segregate and release portions of previously disclosed and newly identified redacted documents.

In late June 2011, DHS responded to AILA’s motion for summary judgment with a cross-motion for summary judgment and filed an opposition to plaintiff’s statement of material facts not in genuine dispute. AILA replied to DHS cross-motion in late July. DHS responded to AILA’s reply in early August.

In March 2012, Judge Emmet G. Sullivan issued a lengthy opinion in which he denied the government’s cross-motion and partially granted AILA’s motion to the extent that he found the government’s privilege log to be inadequate. He ordered the agency to better explain its claims exemptions in the form of a revised Vaughn index:

The Court notes that the USCIS’s revised Vaughn submissions must be sufficiently detailed such that the Court and plaintiff can conduct their own reviews of the segregability of the non-exempt information, particularly in light of the previously-disclosed information regarding fraud indicators in the BFCA Report (Watkins Decl., Ex. 2) and the Compliance Review Report Instructions produced by defendants in response to plaintiff’s FOIA Requests (Watkins Decl., Ex. 29). The Vaughn submissions should contain a segregability analysis for each document withheld in part or in full, identifying the proportion of exempt and non-exempt information, and specifically explaining why the withheld information cannot be produced.

In a May 16, 2012 letter, USCIS stated that it undertook “its most rigorous comparative review” of the remaining undisclosed documents requested in AILA’s FOIA request and determined that it would disclose the documents in full.

Thanks to the diligence of AILA, LAC and its counsel at Steptoe & Johnson LLP, the FOIA request has been granted in full in order to gain a better understanding of DHS and USCIS policy concerning its H-1b fraud program. Thanks to these documents, employers will have better knowledge of what DHS and USCIS has been focusing on during its fraud investigations for H-1b petitions and what an employer needs to do to ensure that no fraud is going on with the H-1b program.

Matter of Arrabally and Yerrabelly Sets New Precedent for Advance Parole

Fri, 18 May 2012 16:33:16 -0800

This past April, a decision came down from the Board of Immigration Appeals (BIA) that addressed an important issue concerning Advance Parole for aliens whose unlawful presence for one year or more would trigger the 10 year ban from the U.S. The BIA decision of Matter of Arrabally and Yerrabelly has clarified what counts as a departure under the INA.

The statute that concerns all immigrants who have been in unlawful presence for one year or more is as follows: "Beginning April 1, 1997, a person who has been unlawfully present in the U.S. for one year or more consecutively and again seeks admission is barred for 10 years from the date of such person's departure or removal from the U.S. INA section 212(a)(9)(B)(i)(II), 8 U.S.C. section 1182(a)(9)(i)(II). In order to trigger the 10-year bar, departure from the U.S. is required, H.R. Conf. Rep. 104-828, 104th Cong., 2d Sess. at 207."

The (BIA) has clarified the term - departure -- in the Matter of Arrabally on April 17, 2012 which will help thousands of immigrant applicants who like Manohar Rao Arrabally have been entangled in the web of statutes, regulations, case law, and agency memorandum.

In this case, Mr. Arrabally and Ms. Yerrabelly, while waiting on their I-485 adjustment of status, found it necessary to return to India to attend to their aging parents, but they were appropriately concerned that the USCIS would deem their adjustment applications abandoned if they left the United States. To prevent their applications from being deemed abandoned, they applied for “advance parole” from the USCIS pursuant to section 212(d)(5)(A) of the Act. See 8 C.F.R. §§ 212.5(f) (providing for the advance authorization of parole); 245.2(a)(4)(ii)(A) (2004) (providing that “the departure of an [adjustment] applicant . . . shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States”). The respondents’ requests for advance parole were granted, and they traveled to India and back on several occasions between 2004 and 2006, returning each time in accordance with the terms.

In separate notices issued on October 15, 2007, the USCIS informed Mr. Arrabally and Ms. Yerrabelly that their applications for adjustment of status were denied. Specifically, the notices informed the respondents that they were no longer “admissible” to the United States, as required for adjustment of status, because they had departed this country (under grants of advance parole) after having been “unlawfully present” here for 1 year ormore and were seeking admission less than 10 years after having departed, a set of circumstances that rendered them inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

Mr. Arrabally promptly sought reopening of his adjustment application before the USCIS, noting the humanitarian considerations that had prompted his request for advance parole and contending that he and his wife should not be punished for having departed the United States when the DHS knew about, and expressly approved of, those departures by granting them
advance parole. On July 21, 2008, a USCIS Field Office Director issued a decision acknowledging the force of some of the male respondent’s arguments but ultimately concluding that his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act necessitated the denial of his application. In arriving at that conclusion, the Field Office Director invoked Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (“Lemus I”), in which we held that section 245(i) adjustment is unavailable to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) and are not eligible for a section 212(a)(9)(B)(v) waiver.

On November 21, 2008 the DHS commenced these removal proceedings by filing notices to appear in Immigration Court, charging the respondents with inadmissibility under section 212(a)(7)(A)(i)(I) of the Act. By serving these notices to appear on the respondents, the DHS terminated their parole, thereby restoring them to the status they allegedly held at the time of their last parole into the United States, that is, as intending immigrants who are not in possession of valid admission documents. On February 12, 2009, Mr. Arrabally and Ms. Yerrabelly conceded removability through counsel and sought to renew their adjustment applications before the Immigration Judge. At the conclusion of an evidentiary hearing conducted on August 20, 2009, the Immigration Judge found the respondents inadmissible under section 212(a)(9)(B)(i)(II) of the Act and ineligible for section 245(i) adjustment, and he ordered them removed to India.

Mr. Arrabally and Yerrabelly appealed of the decision to the Board of Immigration Appeal. So the question presented to the Board of Immigration Appeal in this case was "whether the respondents (Mr. Arrabally and Mrs.Yerrabelly) who left the United States temporarily under a grant of advance parole, thereby effected a “departure,” which resulted in their inadmissibility under section 212(a)(9)(B)(i)(II)."

The Board of Appeal held that they did not. --- "An alien who leaves the United States temporarily pursuant to a grant of an advance parole (I-131) does not thereby make a "departure ... from the United States" within the meaning of the section 212(a)(9)(B)(i)(II) (2006). Matter of Lemus, 24. I. & N. Dec. 373 (BIA) (2007). Clarified.

Consequently, Mr. Arraball's and Mrs. Yerrabelly's appeal were sustained in part and the records were remanded to the Immigration Judge for further proceedings. Decided on April 17, 2012. (Matter of Arrabally, & Yerrabelly, 25 I.&N. De. 771 (BIA 2012)).

Since this decision, the local Field Office in San Diego has clarified their stance on handling adjustment of status cases. In particular:

- A currently pending case but where an unlawful presence waiver has been requested but not yet filed, the Local office will notify applicants that an I-601 waiver is not necessary.
- Where the unlawful presence waiver has been filed but not yet adjudicated, it will not necessary to adjudicate waiver case and the local office will move forward with adjudication of the application without the waiver.
- Where the unlawful presence waiver has been denied but the adjustment is still pending, the field office will move forward with adjudication without the wavier since it is no longer required.
- The unlawful presence waiver has been denied, the adjustment has been denied, but the NTA has not yet been issued, if the case was pending on or after 04/17/12 then the local office will do a service motion to reopen since it was an error to deny.

This decision clarifies what it means to depart the U.S. for those who are currently waiting on an adjustment of status. The BIA made the right decision in determining that leaving on an Advanced Parole should not count as a departure within the meaning of the INA and should not be held against those who received Advanced Parole to leave the U.S. while waiting on their adjustment.

California Supreme Court Reviews Request of Illegal Immigrant to Practice Law

Thu, 17 May 2012 14:37:57 -0800

California's agency that licenses lawyers wants to admit an illegal immigrant to practice law, an unprecedented request that the state's highest court decided Wednesday to review.

The State Bar of California certified Sergio C. Garcia after he passed a written test and a moral examination, sending it to the California Supreme Court for routine approval. The bar informed the court at the time that Garcia was undocumented. In a unanimous decision, the state high court ordered the bar to explain why an illegal immigrant should be given a legal license and invited briefs from other parties, opening the door to a potentially heated debate over national immigration policy.

Would the issuance of a license imply that Garcia could be legally employed as an attorney? the court asked. What are the legal and public policy limitations, if any, on an illegal immigrant's ability to be a lawyer? May other state agencies that license professionals also admit undocumented immigrants? After reviewing the written arguments, the court may hold oral arguments on the case.

Garcia's case is the first to come before the state's highest court involving an illegal immigrant seeking a legal license, according to a court spokeswoman. Similar cases are pending in Florida and New York. The bar began asking non-citizen applicants their immigration status several years ago.

Garcia was born in Mexico and brought to the United States by his parents when he was 17 months old, according to the Daily Journal, a legal newspaper. He attended college in Chico and works as a paralegal. Garcia has applied for legal status, but the process could take five to 15 years, Garcia's immigration lawyer has said.

Stanford Law professor Deborah Rhode, a legal ethicist, said she would be surprised if the court approved a legal license for Garcia before he obtained residency. "It seems fairly inconsistent with a long line of decisions that officers of the court are forsworn to uphold the law and should not be seen to have defied it," she said. But she also cautioned that Garcia could have a personally compelling case.

"Some of these cases are really heart-wrenching on the facts, especially undocumented immigrants who are brought over to this country at a young age, who go through the school system, who managed to triumph over a lot of obstacles, and who have now invested all this money in a degree," she said.

A spokeswoman for the bar said it would respond to the court's order but declined to discuss Garcia's case. Instead, the spokeswoman provided a summary of requirements for practicing law in California. These requirements included a juris doctor from an accredited law school, a background check and a positive finding of moral character. The summary said applicants must supply a Social Security number but may request an exemption. The summary made no mention of immigration status.

Garcia's immigration lawyer was unavailable.

Jerome Fishkin, a lawyer who is representing Garcia before the bar, responded to a request for an interview with a brief written comment. "We hope that the California Supreme Court adopts the state bar's finding that Sergio meets all legal qualifications to become a California lawyer," Fishkin said. "We will be filing our brief on his behalf." It will be interesting to see how the California Supreme Court will ultimately rule on this issue.

P3 Visas - Precedent Appeals Decision on P-3 Nonimmigrant Visa Petition (culturally unique)

Wed, 16 May 2012 13:17:33 -0800

Great News for Arts groups coming to perform in the US. U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision addressing the term “culturally unique” and its significance in the adjudication of P petitions for performing artists and entertainers.

The P visa was created to provide opportunities for aliens primarily performing as a group and not individually to tour in the US. The P visa, like the O1 visa, was also created by the Immigration and Nationality Act of 1990. In addition to covering performing and fine artists, the P1 also covers athletes.

It is important to make clear that the O1 visa (aliens of extraordinary ability) enables individuals to enter and work in their field of specialty, the P visa does not allow individuals to work unless they meet the criteria set in the law. This having been said P visa applicants do not have to have reached the pinnacle of their careers like O1 visa applicants, but P visa applicants do need to be nationally, or internationally known. For example, the group may have performed in other countries, or tour their own country and known to the community appreciating their artistic endeavors.

In the case at issue, the Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. Due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review.

USCIS’s AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination.

The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The decision is a positive step in allowing a broader range of groups to enter the US and perform. If you have any questions about the P3 visa, feel free to contact us.

STEM Degree Programs Expanded by DHS

Mon, 14 May 2012 15:39:49 -0800

In an effort to keep more and more students with science and technology backgrounds in the U.S., DHS has added more science, technology, engineering, and math designated degree programs to the list of qualifying student visa extensions.

The recently added STEM designated-degree programs include pharmaceutical sciences, econometrics and quantitative economics. These programs qualify eligible graduates on student visas for an optional practical training (OPT) extension. Generally, OPT allows eligible international students to remain in the United States for up to 12 months while they gain work experience and receive training related to their programs of study. This is great for a student wanting to gain valuable experience in their field while allowing a company a chance to see if this person would be a good fit and worth sponsoring on another work visa.

For students who graduate with a STEM designated degree, they can remain for an additional 17 months on an OPT STEM extension. A student may be eligible for the 17-Month OPT STEM extension under the following circumstances:

- The degree for your current period of post-completion OPT is a bachelor’s, master’s or doctoral degree in a STEM program listed,
- The employer from which you are seeking work uses the E-Verify Program, and
- A student has not already received a 17-month extension of OPT.

"Attracting the best and brightest international talent to our colleges and universities and enabling them to contribute to their professional growth is an important part of our nation's economic, scientific and technological competitiveness," said Secretary of Homeland Security Janet Napolitano. "International students and exchange visitors bring invaluable contributions to our nation, and this helps empower the next generation of international entrepreneurs, right here in America."

By expanding the list of designated STEM degree programs to include such fields as pharmaceutical sciences, econometrics and quantitative economics, the Department is helping bring the best, most qualified international students to the United States.

These reforms reflect the Obama administration's ongoing commitment to promote policies that embrace talented students from other countries, who come to study in our finest colleges and universities and enrich the nation by allowing highly skilled foreign graduates to extend their post-graduate training in the United States and work in their field of study upon graduation.

Let us hope that with the expansion of the STEM degree program that it will indeed keep more talented students here in the U.S. with the potential to build our Economic infrastructure and stay competitive in the global economy.

Rubio hopes to pass DREAM Act alternative by end of summer

Fri, 11 May 2012 16:06:19 -0800

Sen. Marco Rubio (R-Fla.) aims to have his alternative to the DREAM Act proposal on paper in the next few weeks and passed by the end of the summer. "Our goal is to pass something this summer in time for kids who plan to go to school this fall," Rubio press secretary Alex Conant said Monday. Rubio's proposal would provide non-immigrant visas to illegal immigrants' children who attend college or serve in the military.

"So just like lots of people come to the United States on work visas or on student visas or tourism visas or whatever, this would be a non-immigrant visa, so it would be a temporary one," Conant said. "It wouldn't be permanent. But the intent here is if they choose to remain in the United States permanently that they could apply for permanent residence just like any other immigrant would."

Rubio's proposal is an alternative to the Democrat-backed DREAM Act, sponsored by Sen. Dick Durbin (D-Ill.), which would grant legal status to illegal immigrants who came to the U.S. when they were young and then go to college or serve in the military. Conant said Rubio's legislation would not mean the immigrants would be deported after their visa runs out.

"They could apply for permanent residence after a certain amount of time without having to return to their country of origin," Conant said. "They'd be like any other immigrant except that they could wait while they're in the United States. The Democrats' DREAM Act doesn't have them leaving the country but, as I said, it creates a special pathway for them."

Rubio's office does not yet have an estimate on how many new visas would be issued under the proposal. Conant said it depends on what the qualifying age for the visas in the legislation will be.

A day earlier, Rubio defended the proposal against criticism that it was a form of amnesty.

"We use the existing immigration system to deal with a humanitarian issue. And that is these children who entered this country illegally or have overstayed visas illegally, through no fault of their own," Rubio said on Fox News Sunday. "These are children, they follow their parents. The parents put them in this predicament."

While the difference might be quite different between the proposal from Sen. Durban and the proposal from Sen. Rubio, it will still come down to whether Congress can come to a compromise on this issue and help these children become U.S. citizens.

J1 Visas - Major Changes in the Work and Travel Visa due to Abuse

Thu, 10 May 2012 17:15:55 -0800

Another attestation to our flawed immigration system, this time the end of a great visa program that was abused to the point of disgrace.

The J-1 Summer Work and Travel program, which allows college students to visit for up to four months, is one of the State Department's most popular visas. Participation has boomed from about 20,000 in 1996 to a peak of more than 150,000 in 2008.

The visas are issued year-round, since students come from both hemispheres on their summer breaks. They work all over the country, at theme parks in Florida and California, fish factories in Alaska and upscale ski destinations in Colorado and Montana. The influx has been especially overwhelming for some resort towns.

The State Department announced major changes to cultural-exchange programs following an investigation by the Associated Press that found widespread abuses.

The agency issued new rules for the J-1 Summer Work and Travel Program, which brings more than 100,000 foreign college students to the United States each year.

The changes are the latest in a series of steps the State Department has taken to fix the program since the 2010 AP investigation. The investigation found that some participants were working in strip clubs, not always willingly, while others were put in living and working conditions they compared to indentured servitude.

Many foreign students pay recruiters to help find employment, then don't get work or wind up making little or no money at menial jobs. Labor recruiters charge students exorbitant rent for packing them into filthy, sparsely furnished apartments so crowded that some endure "hotbunking," where they sleep in shifts.

Students routinely get threatened with deportation or eviction if they quit, or even if they just complain too loudly. Some resort to stealing essentials like food, toothpaste and underwear, according to police.

"The vast majority of participating students in this program find it a rewarding experience and return home safely," the State Department said in an e-mail to the AP.

The new rules are meant to ensure that students are treated properly and that they get jobs where there will be interaction with Americans and exposure to U.S. culture.
Some of the rules are effective immediately, while others will take effect in November, including a significant one that would prohibit participants from working in "goods-producing" industries such as manufacturing, construction and agriculture.

The rules also ban participants from working in jobs in which the primary hours are between 10 p.m. and 6 a.m.

"The new reforms for the Summer Work Travel program focus on strengthening protections for the health, safety and welfare of the participants, and on bringing the program back to its primary purpose, which is to provide a cultural experience for international students," Robin Lerner, a deputy assistant secretary for the State Department, said in a statement.

The Work and Travel category allows sponsors to bring foreign university students to the US during their summer vacations to travel and work in the US . Sponsors are encouraged to select visitors who, because of their distance from the US , would most likely not be able to afford to come to the US without temporary work authorization. This is the only J-1 category in which the number of foreign nationals the sponsor helps enter the US must be the same as the number of US students it sends abroad.

K1 Fiance Visa Lawyer - K-1 Adjustment of Status Important Updates

Wed, 09 May 2012 14:38:06 -0800

Filing for a Green Card after arriving to the US on a Fiance Visa is a very confusing topic for many Immigrants. Once the fiancé(e) has entered the United States he/she must get married within 90 days of the fiancé(e)'s arrival in the United States. Once the marriage takes place the Petitioner must file Form I-485 Adjustment of Status with United States Citizenship and Immigration Services (USCIS) office.

Recent case law, provide some guidance on particular issues affecting the Adjustment of Status of certain applicants. On March 17, 2011, the BIA issued Matter of Sesay, in which it concluded that there is no requirement that a K-1 fiancé(e)’s marriage to the I-129F petitioner remain intact in order for the K-1 to adjust status.

On June 23, 2011, the BIA issued Matter of Le, in which it cited Sesay and ruled that there is no requirement that a K-2 remain under 21 years of age in order for the K-2 to adjust status.

USCIS has drafted guidance related to Matter of Le and Matter of Sesay. This guidance is currently undergoing internal review and should be issued soon.

Also, keep in mind that Sesay addresses only whether a visa as an immediate relative is available. The applicant must still establish the he or she is admissible as an immigrant, and that he or she merits a favorable exercise of discretion. 25 I&N Dec. at 441. Admissibility must exist on the date of adjudication of the adjustment application. 8 CFR 103.2(b)(1).

Please keep in mind though that, a K1 fiance visa holder cannot adjust his or her status to a lawful permanent resident based on a marriage to any one other than the U.S. Citizen petitioner. A person in this situation would have to return to his or her country and apply for an visa at the U.S. embassy abroad.

Feel free to email us with any questions.

District Court Finds Plaintiff Eligible for Naturalization, Orders Government to Comply with FOIA

Tue, 08 May 2012 15:10:29 -0800

We really enjoy seeing cases where individuals who have done everything right are able to succeed in being granted their citizenship. In Naturalization cases, it can be difficult to get an approval if the government decides to fight even one minor part of the record. This recent decision by a U.S. District Court highlights the struggle between an individual and USCIS when the government chooses to carry on the fight with its determination that you should not receive citizenship.

The U.S. District Court for the Northern District of California ruled on March 21, 2012, that Plaintiff Mirsad Hajro was eligible for naturalization. The decision follows a May 27, 2011 order by the court denying a summary judgment motion by the government. USCIS originally denied Mr. Hajro's Form N-400, alleging that the Mr. Hajro gave false testimony with the intent to obtain an immigration benefit, and thus lacked the good moral character required for naturalization.

The facts in question concerned information provided by Mr. Hajro during an interview for his naturalization. Mr. Hajro had served in the Bosnian military and a question arose asking if he had been in possession of any firearms during his time in the military. The court found that the Mr. Hajro did not provide false testimony on either his I-485 or N-400 applications, noting that, in the instances where Mr. Hajro's responses were deficient, he provided reasonable, credible explanations for the omissions. It also found that Mr. Hajro consistently volunteered information to USCIS to enable it to make its decision. As a result, the court held that the plaintiff was a person of good moral character during the relevant three-year period, and was eligible for naturalization.

In related FOIA litigation, on October 13, 2011, the Northern District of California had ordered USCIS to respond to the Mr. Hajro's FOIA request for his A file in 20 days, absent unusual circumstances. On May 7, 2012, the court issued a final judgment in the FOIA litigation, finding that USCIS was in violation of FOIA for the reasons set forth in the October order, and issued a permanent injunction requiring USCIS to comply with FOIA's provisions.

When looking at the motions on this case, it is frustrating to see the government fight this person's citizenship over such a small matter when our resources need to be put to better use. USCIS felt Mr. Hajro was trying to withhold information about his service in the Bosnian military when that was not the case, which the Court properly concluded. USCIS wasted taxpayer money filing motions to get its own determination upheld when as a matter of law Mr. Hajro was allowed to petition the Court to review his entire case De Novo and reach its own conclusion.

The Court's decision highlights a frightening concern over the great discretion USCIS has in making capricious and arbitrary decisions. Without the good lawyers that worked on Mr. Hajro's case, Mr. Hajro would not be able to call himself an American, something every citizen is proud to carry. Cases like Mr. Hajro's are a call for greater transparency in the immigration process, and quite possibly another reason for why the system is in need of a serious overhaul.

National Interest Waivers - Physicians Special Considerations

Thu, 03 May 2012 08:49:36 -0800

To qualify for a national interest waiver (NIW) pursuant to INA §203(b)(2)(B)(ii), a physician must commit to working for a total of five years as a full-time clinical physician either at a facility operated by the Veteran’s Administration or in an HHS-designated Medically Underserved Area (MUA)/Health Professional Shortage Area (HPSA). The following are some tips and information on NIW adjudications.

* Requirement for a Five Year Employment Contract. In a 2007 policy memorandum, USCIS confirmed that the NIW petition may be filed at any time before, after or during the five year commitment period and that the five year commitment need not be completed within any specific period of time. However, the regulations still require the submission of a five year employment contract with the NIW petition filing.

This can present challenges for physicians who may have completed some or all of the qualifying five years of employment before filing the NIW petition. Common sense would indicate that the length of the employment contract need only be five years if the physician had not already completed part of the commitment prior to filing the petition. The literal language of the regulation requires “a full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a VA facility.”

In the event that the physician had completed all five years of service before filing the petition, the remaining “required period of clinical service” would be zero and the physician should be able to provide evidence of service completion at the time of filing the I-140 petition instead of an employment contract. In the event that the physician had completed a portion of the service requirement before filing the I-140, the physician should be able to present evidence of the completed portion, together with a signed employment agreement for a term covering the balance of the five years.

Instead, USCIS continues to insist upon an agreement dated within 6 months of filing the NIW petition that either runs for a full five year term, or acknowledges whatever time has already been worked toward the commitment with prior employers. For the physician who is currently working for the same employer with whom he or she began her service commitment, the contract can be amended to extend the term for however long is required to reach a maximum of five years.

The contract addendum should have been executed within 6 months prior to the filing of the NIW petition, and should acknowledge the amount of time the physician has already worked for the employer and the fact that the term of the contract is being extended to cover a total of five years of employment.

Physicians who have already completed the full five year term, or who are no longer employed by the employer with whom they began the service commitment should execute an addendum to their current employment contract within 6 months prior to filing the NIW petition in which both parties acknowledge the time the physician previously worked toward completion of the five year commitment.

In the alternative, such physicians could file the NIW petition with a new five year contract with an underserved area employer notwithstanding that some or all of the qualifying five years of employment was completed before filing the NIW petition. This would not mean that these physicians would have to wait an additional five years to be approved for adjustment of status; USCIS will agree to consider the prior employment evidence in the context of the adjustment of status application.

Upon submission of tax returns, pay stubs and a letter from the prior employer, USCIS will credit the previous time worked toward the five year medical service period required for approval of the I-485. Be sure to document that each location is underserved, or was underserved at the time the physician began practice there. However, at the present time, USCIS will not accept this same evidence in support of the I-140 petition because it does not take the form of a five year contract dated within six months prior to filing the NIW I-140 petition.

What Time Counts Toward the Five Year NIW Commitment Period?

Physicians who are subject to the three year J-1 waiver commitment pursuant to INA §214(l) may count that three years of employment toward completion of a five year NIW commitment. In addition, during an August 2011, USCIS confirmed that physicians who completed U.S. residency or fellowship training in a status other than J-1 may also count that training time toward completion of the five year commitment so long as the training occurred at a location that otherwise qualifies under the statute.

When May the Physician Stop Working at a Qualifying Facility?

USCIS confirmed that a physician who has completed the five year qualifying service commitment need not remain employed at a qualifying site until the I-485 is ultimately approved. This is particularly relevant for physicians from India and China who, because of backlogs in immigrant visa availability, may complete their five years of service long before their adjustment of status applications are ultimately approved.

May Specialist Physicians Submit NIW Petitions?

The physician NIW program was initially limited to primary care physicians (internal medicine, family practice, OB/GYN, pediatrics and psychiatry) unless the physician was to be employed at a Veteran’s Administration facility. In 2007, USCIS issued a policy memorandum confirming that specialist physicians working at non-VA facilities are also eligible for a physician NIW, so long as the facility is located in a Physician Scarcity Area (PSA), Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA).

What Types of Medical Practitioners Qualify for the NIW Petition?

An NIW petition under INA §203(b)(2)(B)(ii) may only be filed on behalf of clinical physicians. Dentists, chiropractors, podiatrists, and optometrists do not qualify, although they may meet the evidentiary criteria for a standard NIW petition filed under INA §203(b)(2)(B)(i).

Feel free to email us with any questions.