Immigration Visa Lawyer Blog

Your I-485 application to adjust status to permanent residence can be denied if you are deemed to be a "public charge." Under immigration law, you are a public charge if you have received public cash assistance to maintain your income or you were institutionalized for long-term care at the government's expense.

Public benefits that will make you a public charge

Cash assistance public benefit programs that will cause you to be considered a public charge include:

• Aid for Families with Dependent Children (AFDC)
• State and local government assistance programs
• Supplemental Security Income (SSI)
• Programs such as Medicaid that provide support for long-term institutionalized care
• Temporary Assistance for Needy Families (TANF)

Generally, non-cash benefits will not count toward a public charge determination unless they are for long-term institutionalized care. Public benefits that are supplemental in nature rather than primary income support do not count. These include:

• Medicaid and other health benefits
• Food stamp programs and WIC
• Children's health insurance program (CHIP)
• Child care assistance, housing benefits
• Foster care and adoption assistance
• Job training programs
• Emergency disaster relief
• Energy assistance such as the Low Income Home Energy Assistance Program (LIHEAP)
• Other community-based program such as a shelter or soup kitchen

In certain family-based green card or immigrant visa cases, the Form I-864 Affidavit of Support is filed with the application to show that you have the financial means to live in the United States without public benefits. This form is signed by a person who will be your sponsor and must receive a yearly income of at least 125 percent of the federal poverty level. The I-864 form is required for many family-based preference categories.

Exempt Immigration categories

Certain immigration categories are exempt from the public charge rule. These include:

• Refugees and asylum applicants
• Haitian Refugee Immigration Fairness Act (HRIFA)
• T Visa and U Visa
• Nicaragua and Central American Relief Act (NACARA)
• Cuban Adjustment Act (CAA)
• Amerasian Immigrants
• Temporary Protected Status (TPS)
• LIFE Act Provisions

Immigration reform was a hot topic in the past presidential election, albeit for a short period of time. Now that the election is over, many are looking ahead to the possible changes that could be taking place. There are several areas of possible reform where immigrants are eager to see changes. These areas include, people who entered without inspection, undocumented youth, highly educated immigrants and undocumented workers.

Obviously, the most important area of reform for those without status is legalization. It is estimated that there are about 11 million undocumented people currently in the United States. It will be interesting to see how difficult any path to citizenship will be, especially how long the undocumented person needs to be in the country before they can apply for the new hypothetical temporary status and for how long they must maintain that status before they can get their green card. The new roadmap to naturalization might be a long winding one, but many will probably be excited just to have a chance to become U.S. citizen, where before there was little legal recourse available to them and they were forced to live on the fringes of society.

Focusing specifically on the young undocumented people in the United States, they likely receive a special program specifically for them. Any path to citizenship for the young undocumented people will probably bear some resemblance to the current proposed federal DREAM Act (Development, Relief, and Education for Alien Minors). Deferred Action for Childhood Arrivals (DACA) was not the triumphant victory that many believed it would be, but it was far from a failure. A realistic expectation would be that the DACA program and the DREAM Act would merge, maybe even grandfather in the people already granted DACA, giving young people a path to citizenship that requires them to complete some college. The only complaint about the current version of the DREAM Act is that young immigrants were opposed to the military services route and it is likely that most will only choose that path if there is more incentives given for choosing or if they have no other choice.

Building on the education of immigrants, those highly educated professional workers will most likely have their number of temporary visas increased. There is a lot of pressure on Congress from large companies to increase the number of visas available to this class of immigrants. Most of the focus will be on the STEM fields, Science, Technology, Engineering and Math. This high demand will provide those highly educated immigrants, those with Masters Degrees or P.h.D.'s, very few obstacles to obtaining visas or green cards in the future.

Finally, immigrant's ability to work and how employing undocumented workers will be enforced will be the last major area of change. Many businesses, big and small, will often employ undocumented workers in some capacity. The major issue they are facing is the E-Verify system. This system allows employers to check if an immigrant has authorization to work in this country. It is a very real possibility that this will be a mandatory requirement for all workers in the future, including harsher penalties for those that do not follow the new rule. Many have complained that the E-Verity system is too burdensome and would be more trouble than it's worth if made a mandatory requirement. It is a real possibility that if E-verify becomes mandatory, business that heavily rely on undocumented workers will go under because a replacement source of labor does not exist.

The EB5 immigrant visa category is a way for foreign national investors to obtain lawful permanent residency in the US, otherwise known as the green card. This visa category is for immigrant investors who will be engaged in a commercial enterprise that produces 10 US jobs and will benefit the US economy.

In order for a foreign national to qualify, the person must make an investment of $1 million. The investment requirement lowers to $500,000 if it can be established that the investment will be for what is known as a targeted employment area, which means a rural area or an area having at least 150% of the national unemployment average.

The foreign national must make the investment in a commercial business. Investment must consist of capital, which means cash or tangible assets. Regulations provide that capital must have been acquired legally. Capital that was acquired in an unlawful manner or was acquired while the person was in unlawful immigration status may not be used.

The investment must create a new business, or restructure or expand an existing business. In order to qualify, the immigrant investor must be engaged in the management of the enterprise, rather than possess a mere passive role.

Once the EB5 visa is granted, the foreign national obtains lawful permanent resident status, which is for a conditional two-year period. A petition to remove the condition must be filed within 90 days before the end of the two-year period with evidence that the investor still meets the requisite criteria. Failure to meet the deadline terminates the permanent resident status.

The EB5 visa category is one of the most complicated areas of immigration law. Although 10,000 visas are available each year, only 1,000 are granted. It is highly advisable retain a professional and experienced attorney with the ability to competently handle EB5 cases. Such practice not only involves an extensive knowledge of immigration law, it also requires knowledge in corporate, investment, and tax law as well. It may be advantageous to also examine the possibility of alternatives including EB1, E2, and L1 since you may qualify for these as well.

The EB2 employment-based second preference immigration visa requires a labor certification and job offer. There is an exception to these requirements if it can be established that granting a visa is in the national interest of the United States. This is the national interest waiver. The criteria are a three-part test established by case law:

1. The foreign national's work must be in an area of substantial and intrinsic merit;
2. It must be established that the foreign national's benefit will be national in scope;
3. The foreign national must benefit the US to a substantially greater degree than those with equivalent minimum qualifications;

The USCIS will consider 14 criteria in making the determination whether to grant a national interest waiver if the foreign national's work will achieve one or more of the following:

1. Improve the US economy;
2. improve US working conditions and wages
3. Improve training and education programs for under qualified workers and for US children;
4. Improve healthcare;
5. Make available more affordable housing for US residents who are poorer and either young or old;
6. Improve the US environment and use natural resources more productively;
7. An interested US government agency has requested the foreign national;
8. Improve the US economy;
9. improve US working conditions and wages
10. Improve training and education programs for under qualified workers and for US children;
11. Improve healthcare;
12. Make available more affordable housing for US residents who are poorer and either young or old;
13. Improve the US environment and use natural resources more productively;
14. An interested US government agency has requested the foreign national.

A petition requesting a national interest waiver will be denied when the petitioner establishes only the importance of the beneficiary's occupation. It is also imperative to establish that a beneficiary plays a significant role in achieving an accomplishment in the US national interest to a greater extent than would US workers with the same qualifications. This is because the benefit of the foreign national's skill or background must outweigh the inherent national interest of the labor certification process in protecting US workers.

The measure of impact required to establish national interests is less than "major significance," but instead is "some impact on the field as a whole." The key to accomplishing this is to establish the beneficiary's past impact in the field that distinguishes the beneficiary from others. It would be a mistake to solely establish future impact on the life it is connected to past impact. In order to do this petition should provide independent evidence establishing some amount of past impact within his or her field that distinguishes the foreign national from others.

When making the decision whether to file for adjustment of status (AOS) in the United States or to get consular processing (CP) abroad, there are several factors to examine. The processing time to get an immigrant visa and the time to get adjustment of status can vary. Many foreign nationals are eager to finish the process as fast as possible. Employment-based immigrants may worry about getting laid off before their process has completed. Family-based immigrants may be anxious to ultimately reach naturalization and obtain US citizenship so that they may begin filing petitions for other family members.

Advantages of Adjustment of Status

AOS allows you to remain in the United States. The application is filed by mail, which is convenient because you do not have to travel and incur the trouble and cost of attending an interview at the consulate abroad. The USCIS will usually waive the interview requirement and simply approve the application based upon the information provided in the forms and the evidence attached as supporting documentation. However, the interview is not waived for family-based and diversity visa lottery applications. You may be able to obtain work authorization EAD and advance parole AP permission to travel outside the US while your application is pending. Employment-based applicants may be able to take advantage of AC21 portability benefits to switch employers.

Advantages of Consular Processing

CP takes place in your home country at the US Consulate. CP may be faster in some cases. There is no requirement to maintain valid status while your application is pending. Consular processing applications are less likely to be denied. If you have immigration violations on your record, a criminal record, or other negative issues, you may want to choose CP instead of AOS. An application for adjustment of status filed with the USCIS is discretionary, meaning that your application can be denied if the USCIS officer adjudicating your application simply decides not to approve it. Conversely, an immigrant visa application filed with a consular office is not discretionary and must be granted unless it can be denied based upon specific legal grounds.

With these factors in mind, it may be advantageous to get advice from a professional, experienced immigration attorney to help you with your decision.

A Republican bill, named the STEM Jobs Act, will come to a vote today that would grant 55,000 US permanent resident visas, otherwise known as green cards, to foreign nationals who graduate from US colleges with advanced degrees in the technology fields of science, technology, engineering, and mathematics.

The bill is expected to pass in the Republican-controlled House of Representatives. However, it seems likely the bill will die in the Democrat-led Senate. Democrats oppose the bill because they say it will offset the new STEM green cards by doing away with the Diversity Immigrant Visa Program that grants immigrant visas to foreign nationals of mostly African nations, which normally have low US immigration rates.

Republicans say the STEM Act is designed to stop foreign national graduates of US colleges from leaving the United States to take jobs abroad. The goal of the Act, Republicans say, is to keep highly skilled talent in the US in order to create jobs, spark innovation, and boost the ability of the US to compete in the world job market.

A similar STEM Act bill failed to pass the House in September since it required a two thirds majority vote. Today's bill was created to fall under a different procedure that requires only a simple majority to pass.

It would seem that the GOP Republican Party desperately wants to prove to the Latino community that it is pro-immigration and seeks to reach out to Hispanics. Republicans even introduced a newer DREAM Act bill in the Senate this week that in some ways looks similar to the Obama administration's new DACA policy.

Legislation was introduced in the US Senate today that would give legal immigration status to young foreign nationals who came to United States as undocumented children. The bill looks similar to the new Deferred Action for Childhood Arrivals introduced by the Department of Homeland Security this summer. It goes even farther as it ultimately offers permanent legal status and ultimately US citizenship.

The bill was introduced by three Republicans, Arizona Sen. Jon Kyl, Texas Sen. Kay Bailey Hutchison, and Sen. John McCain. This shift in Republican immigration policy seems to come in response to the recent barrage from several political pundits and experts who have advised the Republican Party to reach out to the Latino community. However, it's unlikely that Democrats will allow the Republicans to steal away their thunder on the immigration issue.

The bill was even attacked by Mary Giovagnoli, Director of the Immigration Policy Center, as "really unfortunate" because it does not include the path to US citizenship. But according to Sen. Kyl, the bill does offer a path to legal US permanent residency, and at that point the foreign national would be on a path to US citizenship.

To be eligible, the bill requires that applicants must have lived in the US for five years before the bill's enactment, must have entered the US while under age 14, must have good moral character, must not have a felony conviction or two or more misdemeanor convictions, and must be under age 28 or under 32 for those with a US bachelor degree. This bill would grant a W-1 non-immigrant visa. Then the foreign national would have six years to earn a college degree or serve the US military for four years. W visa holders would be required to report every six months to the DHS. They would be forbidden from receiving public welfare benefits or federal student loans.

Once the person has a college degree or four years of military service, he or she becomes eligible for a four-year W-2 work visa. After the person finishes four years of work or has an advanced college degree, the person would be eligible for a W-3 visa that is renewable every four years. Then the W-3 visa holder would be on a path toward legal permanent residency, otherwise known as the Green card.

It is readily apparent that in the few weeks leading up the presidential election, neither President Obama, nor former Governor Romney are willing to commit themselves to any firm and unequivocal stance on employment based, legal, immigration. This reluctance to take a stand further frustrates the thousands of Indian nationals and their employers who have undertaken the emotional, financial and time investment of who have placed themselves at the mercy of the USCIS, US Department of Labor and US Department of State though use of the current employment based preference system. However, while explicit pledges will not be forthcoming from either the current or the potential future president until the elections have passed, their subordinates continue to make the true stance of the candidates known through their actions and interactions with foreign dignitaries. Recent comments from Timothy Geithner, secretary of the treasury (and fifth in the line of succession to the president) to his counterpart in the cabinet of India are indicative of this phenomenon.

Indications of Future Executive Policy toward PERM and H-1B Visas for Indian Nationals.

Speaking at a joint press conference with the Finance Minister P. Chidambaram in New Delhi on October 9, 2012, Secretary Geithner commented on the future of bi-lateral investment between the two countries, stating that "...[Y]ou [will] see a significant expansion of the role played by Indians and Indian companies in the American economy." He went on to say "I think we're at the early stage, even acknowledging and recognizing the huge benefits to the American economy already of the scale of Indian investment and Indian talent in the United States."

Under current immigration law, the only way for US companies to invest in the Indian talent mentioned above on a permanent basis is to sponsor an Indian national for permanent immigration. This sponsorship in turn almost always requires the employer to triumph over the three headed monster known as the PERM process. However, due to the current policy only 140,000 per year, no more than 7% of this total going to any one country per year, there is a backlog of high skilled Indian Nationals who have reserved their place in line to receive a visa, but no visa is available for them because the demand exceeds the supply by thousands of visas per year.

H-1B visa applicants find themselves in a similar situation. Currently, only 65,000 H-1B visas for temporary-high skilled workers are made available per year, with an additional 20,000 made available to persons holding a US master's degree (colleges and Universities are given unlimited visas) In recent years, this quota has not been met few a few months after the date that applications are accepted, however, with the economy improving, it is anticipated that this quota could be met with over 85,000 applications on the first day that filing is available.

Simple Solutions to the Visa Backlog: Allocate More Visas

The simple translation of what Secretary Geithner has stated above in real policy change language is that the administration would like to see an increase of the total number of visas allocated per year. Only an increase in visas made available as a whole would allow for the investment in Indian talent that the secretary has pointed out. Recent proposals to do away with the per-country limitation of 7% on permanent visas per year would only serve to place every employment based visa preference category from every county into a backlog.

The same solution should be applied to the H-1B quota, which could be increased to allow more highly skilled Indian nationals into the county to meet the demands of US industry.

Continue reading "PERM and H-1B Visas for Indian Nationals: More Double Talk from the Executive Branch" »

U.S. Citizenship and Immigration Services (USCIS) Director Alejandro N. Mayorkas announced yesterday that it will create a new office to oversee adjudication of the EB-5 Immigrant Investor program. The EB-5 program allows foreign nationals to become eligible for permanent residency by making a capital investment in a commercial enterprise in the United States. The new office is needed due to the recent exponential growth of the EB-5 program, which is caused by economic growth from capital invested in the U.S. economy from foreign investors to project developers. More than 3,100 EB-5 petitions were approved by the USCIS in Fiscal Year 2012, which is three times the number of petitions approved in fiscal year 2009.

The size of the USCIS' EB-5 adjudication team has been quadrupled since 2009. Eight new expert economists have been brought on board to ensure expeditious handling of EB-5 cases. The USCIS plans to hire two new full-time attorneys who will bring transactional experience to the EB-5 team. At the end of July, every pending application for which a denial has been recommended will be reviewed by a special review board consisting of two Supervisory Immigration Services Officers and one economist, and applicants will be given the opportunity to discuss their cases in person before the USCIS renders any final adverse decision. Today, the USCIS is posting an advertisement for a new position titled Chief of Immigrant Investor Programs, who will lead the new office.

Director Mayorkas said that the USCIS understands that it needs to do more work to further improve its EB-5 program administration, and the USCIS is committed to this work.

Click here to see the official message

The Immigrant Investor Program, otherwise known as the "EB-5," allows foreign nationals to obtain permanent residency (green card) by making a capital investment in a commercial enterprise in the United States. Congress created the EB-5 program in 1990 as a way to stimulate the economy by creating jobs. A commercial enterprise is defined as any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to a sole proprietorship, partnership (whether limited or general), holding company, joint venture, corporation, business trust or other entity that may be publicly or privately owned.

One the immigrant investor is admitted to the United States he/she is granted Conditional Permanent Resident status. This status is conditional upon whether 10 full-time jobs are created for qualifying U.S. workers within a two year period. These jobs may be either direct jobs or indirect jobs. Direct jobs are real identifiable jobs for qualified employees situated inside the company in which the immigrant investor has directly invested capital. Indirect jobs are those that were made collaterally or as a consequence of capital invested in a commercial enterprise affiliated with a regional center by an immigrant investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Capital is defined as cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the immigrant investor entrepreneur, if the investor entrepreneur is personally and primarily liable and that the assets of the new company upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. If you have questions about the EB-5 Immigrant Investor program, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience. Contact us for a consultation.

Undocumented immigrants who believe they may qualify for the new DREAM deferred action immigration policy recently announced by the Obama Administration should beware of notario scams. "Notarios" are so-called immigration experts who may use the recently announced deferred action plan as an opportunity to take advantage of unsuspecting foreign nationals by deceiving them into paying expensive fees for their assistance.

U.S. Department of Homeland Security Secretary Janet Napolitano announced on June 15 of the new DREAM Deferred Action Process for Young People policy that would allow young undocumented immigrants to stay in the United States and get work authorization if they meet certain criteria. Secretary Napolitano said that the USCIS would have 60 days to create an application process to accept requests, and she urged people not to submit requests yet until a process is ready. There is no process set up at the present time

Notarios and other unscrupulous people may misrepresent DREAM deferred action as a "new law" or as a "path to immigration status" as a scam to prey on undocumented immigrants who are desperate for legal immigration status. This is not a new law, but rather it is an enforcement policy of the executive branch, which could easily be overturned by a new president. It also does not provide a path to legal status, a green card, or U.S. citizenship. Instead, it provides a shield against deportation and grants work authorization.

Foreign nationals who wish to apply for DREAM deferred action should avoid anyone who claims that they can submit a request to the USCIS before a process has officially been set up. Since notarios are not lawyers, it is against the law for them to give legal advice, and they are not permitted to represent foreign nationals and cannot talk to the government on their behalf.

Click here to read the Avoid Scams notice on the USCIS at this link.

To commemorate World Refugee Day, U.S. Citizenship and Immigration Services (USCIS) conducted special naturalization ceremonies at locations around the country beginning June 18, 2012. The new citizens are all former refugees who settled in the United States, most through USCIS's process for refugee immigration.

World Refugee Day features events held around the world, coordinated by United Nations officials, intended to raise awareness of refugee issues and promote laws and cultural shifts to help refugee populations. It began with a resolution of the UN General Assembly on December 4, 2000. The first World Refugee Day occurred on June 20, 2001.

The UN defines a "refugee" as a person fleeing his or her home and country because of a "well-founded fear of persecution" based on race, religion, national origin, political opinion, or membership in a social group. The term can also apply to people "in exile" due to a natural disaster. The UN estimates that there are 15.2 million refugees worldwide, out of a total of 42.5 million "forcibly displaced people."

Continue reading "USCIS Marks World Refugee Day by Conducting Naturalization Ceremony for Former Refugees" »

The ink is still drying on the U.S. Supreme Court's decision regarding SB 1070, Arizona's controversial immigration law, where the Court invalidated several parts of the law while upholding one of the challenged provisions. The decision is already having an impact around the country. An immigration law passed in Indiana in 2011, and modeled on Arizona's law, is currently the subject of federal litigation. The Indiana branch of the American Civil Liberties Union (ACLU) sued on behalf of three immigrants challenging the law's constitutionality. Much like in Arizona, a judge enjoined enforcement of parts of the law last year.

The decision in Arizona v. United States struck down three of the four challenged provisions in Arizona's law. It affirmed the constitutionality of the provision requiring police to inquire into a person's immigration status during a legal stop if they have "reasonable suspicion" that the person is undocumented. The Court put limitations on how the state may enforce the provision, holding, for example, that police cannot engage in racial profiling or otherwise violate the equal protection provisions of the Constitution. Whether the state will abide by that part of the ruling remains to be seen.

Indiana's statute, SB 590, became law on May 10, 2011. A similar provision to the one in Arizona would require police to inquire about immigration status upon reasonable suspicion. The law also gives police the authority to arrest someone if they suspect a person has an order of deportation or a notice of action from the Department of Homeland Security (DHS). It even allows police to arrest someone if they have probable cause to suspect the person has been indicted, not convicted, for an aggravated felony. The provision allowing police to arrest someone with a DHS notice of action came under criticism because the broad wording could allow police to arrest someone with any sort of notice from DHS, including for administrative matters like visa applications. An especially unusual provision bans the use of ID cards from foreign consulates.

Continue reading "Supreme Court's Arizona Decision Casts Doubt Over Indiana Immigration Law" »

In what both major sides of the national immigration debate are calling a victory, the Supreme Court ruled on the case challenging Arizona's controversial immigration law. The court struck down three of the four challenged provisions, but affirmed the constitutionality of the provision requiring state and local law enforcement to investigate a person's immigration status if, during a legal stop, the officer has probable to cause to suspect that the person lacks legal status. This provision, along with the other three, raised questions about whether the state was infringing on areas of federal government authority. In striking down three of the questionable provisions of the law, the Supreme Court has mostly affirmed that the federal government has authority over matters pertaining to immigration law and policy. The provision that they upheld may cause problems for immigrants, immigration attorneys, and law enforcement for some time.

The Obama administration's lawsuit challenged the constitutionality of Arizona's SB 1070, the comprehensive immigration law it passed in the summer of 2010. The provisions of the law reviewed by the Supreme Court have never gone into effect because of various court orders. The four challenged provisions would:
- Make it a state crime for an undocumented immigrant to seek employment;
- Make it a state crime for any immigrant to not carry immigration documents;
- Allow police to arrest, without a warrant, someone they believe to have committed an offense that would render them deportable under federal immigration law; and
- Require police to investigate suspects' immigration status.

Continue reading "U.S. Supreme Court Mostly Affirms Federal Government's Supremacy over Immigration Law in Arizona Ruling" »

A complaint filed in May with the U.S. Department of Homeland Security (DHS) demands investigations of alleged abuse by officials along the U.S.-Mexico border. The American Civil Liberties Union (ACLU) references eleven cases involving allegations that agents of Customs and Border Protection (CBP) abused individuals seeking to enter the United States at various points of entry (POE's), with acts of abuse ranging from unwarranted searches and detention to outright assault.

Most of the individuals in the reported cases are citizens or legal permanent residents of the United States. The complaint, which is an informal request rather than a lawsuit, requests investigations of the eleven individual cases and general investigations into the training and conduct of CBP officers. This issue affects more than just undocumented immigrants, as the alleged conduct includes people with legal immigration status nevertheless subjected to alleged abuse at the border.

The complaint, dated May 9, 2012, is addressed to DHS' Acting Officer for Civil Rights and Civil Liberties and its Acting Inspector General. CBP is responsible for customs inspection at POE's around the country, including airports and official border crossings. It also operates the Border Patrol, which is responsible for apprehending people trying to enter the U.S. without going through inspection at a POE. The ACLU's complaint focuses on alleged incidents at the twenty-four border POE's on the U.S.-Mexico border.

Continue reading "Immigration Advocates Complain to DHS of Abuse of Citizens and Immigrants at U.S. Points of Entry" »