Immigration Visa Lawyer Blog

Many spouses and children of U.S. citizens qualify for legal immigration status, but are required to file the application overseas at their country of origin because they are unlawfully present in the U.S., also called "entering without inspection." If they were unlawfully present in the U.S. for more than 180 days, and then they go overseas, there is a law that bars them from reentering the U.S. for 3 years. This bar increases to 10 years if the illegal stay is longer than one year. This creates a catch-22 because if they leave the U.S. to apply for legal immigration status, they will be unable to reenter for 3 to 10 years. So, rather than go overseas to apply for legal status, many simply remain unlawfully in the U.S. to avoid being separated from their family for several years.

Many people who would be subject to the 3 or 10 year bar may be eligible for certain hardship waivers to allow them to return to the US after they apply for legal status overseas despite the 3 and 10 year bar. But critics say this process is lengthy and flawed. They are required to remain overseas until the waiver is granted before they can reenter the U.S., which is a process that can take from months to years, and there is no guarantee that the waiver will be granted. Therefore, many do not risk going overseas to apply for the waiver.

Even if a person has a legitimate relationship with a U.S. citizen, and is eligible to apply for legal immigration status, the current immigration law discourages that person from doing so. Instead, the current law actually encourages that person to remain in the United States illegally, or risk long term separation from the family.

Under the proposed rule change, announced today, foreign nationals in this situation could apply for the waiver while still in the United States. Then once the waiver is granted, they could depart and file for legal immigration status overseas at their country of origin, and then reenter the U.S. using the waiver.

This would eliminate the often prolonged wait faced by foreign nationals who are forced to wait overseas, and would encourage applicants to get legal status rather than remain unlawfully. "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship," USCIS Director Alejandro Mayorkas said. This streamlined process would eliminate much of the economic and other hardships that result from long separation from the family.

A class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council's Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day "clock" should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or "asylum EAD clock") may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

Continue reading "Class Action Lawsuit Alleges Asylum EAD Clock Is Unfair" »

A campaign led by U.S. Citizenship and Immigration Services (USCIS) intends to educate immigrants, both documented and undocumented, regarding common scams purporting to be legitimate immigration services. The Unauthorized Practice of Immigration Law Initiative began in seven U.S. cities including Detroit, and includes advertisements and printed materials in both English and Spanish. Its website has educational materials available in at least fourteen languages. The USCIS has partnered with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), the Federal Trade Commission (FTC), the Department of Justice (DOJ), and the Board of Immigration Appeals (BIA) for this campaign. They are also engaging state and local agencies to improve communication and facilitate enforcement of laws prohibiting immigration scams.

USCIS offers a list of common scams targeting immigrants. People using the title "Notario Publico" sometimes rely on a difference in the meaning of that title between the U.S. and Latin American countries in order to lure immigrants from those areas. A "notary public" in the U.S. has basic authority to witness signatures and administer some oaths. In some parts of Latin America, the title refers to someone with lawyer-like credentials and authority, leading some immigrants to incorrectly think they have the authority to render legal services.

Some sophisticated scammers set up websites offering guidance on immigration paperwork with URL's closely resembling official sites. The sites often directly copy design elements of government websites. The telltale sign of a scam website is a fee to download official immigration forms. All official forms are available for free on USCIS's website.

A particularly damaging type of scam involves the Department of State's diversity lottery, which makes 50,000 visas available each year to certain people from countries with low immigration rates. Scam services may claim to be able to help improve someone's chances of being selected in the lottery. Ohio's chapter of the League of United Latin American Citizens (LULAC) issued a warning regarding Ohio-based scams targeting applicants for the diversity lottery.

Another scam that may seem obvious to immigration attorneys can ensnare people who do not know about the many changes to federal immigration agencies over the past decade. Scammers claiming to work with the Immigration and Naturalization Service (INS) may prey on immigrants. The INS has not existed since 2003, when it became part of DHS and its functions were divided between USCIS, ICE, and other agencies.

Continue reading "Officials Launch Campaign to Raise Awareness of Immigration Scams" »

As the Democrats and Republicans of congress continue to negotiate a compromise to the federal budget that is set to expire Friday, April 6th, 2011 at midnight, immigration attorneys in Columbus, Ohio have turned their attention to how a government shutdown will affect the normal adjudication of visas. Visa applications, including employment based I-140 and H-1B petitions as well as family based petitions including I-130 and I-485 applications, filed in the United States are usually adjudicated at one of the USCIS service centers throughout the country. These service centers are staffed by immigration officers who adjudicate visa applications. These immigration officers are employees of the federal government and could be furloughed if the federal government shuts down for lack of congressional funding.

Historically, government shutdowns have resulted in delays for visa adjudication. The reason for the potential delay is based upon the wording of the federal Antideficiency Act. This law states that in the event of a governmental shutdown the only governmental employees that will be permitted to continue to carry out their work will be employees who prevent or respond to "emergencies involving the safety of human life or the protection of property." The law goes on to state that "ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property" are not to continue their operations during a shutdown. Officers who adjudicate visas at the service centers will most likely not be deemed essential to the protection of safety or property and will be furloughed. With no-one to adjudicate visas, visa applications will be backlogged to some extent. However, other aspects of United States immigration policy will continue to be enforced. Customs and border patrol officials, for example, should remain active.

While the chance of a government shutdown is small, it remains a definite possibility. Also, delays in US postal service operations could occur. Therefore, foreign nationals and attorneys should be cognizant of the potential for delays in the adjudication and delivery of visa petitions and applications to the USCIS service centers.

Continue reading "Government Shutdown Could Effect Visa Adjudications" »

This article is the second installment following up and providing a conclusion to the first segment which provides the final techniques utilized by the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) responses. Again this article focuses on the RFE response, but its techniques are applicable to any written brief or statement made in response to USCIS.

Critique the Request for Evidence Itself
A major component of drafting the response to an RFE is the need to critique the request itself. The immigration officer may not have developed the facts in a complete and accurate manner. It is your job to comprehensively develop those facts (often by use of affidavits). By showing inconsistencies and other problems with the facts, as developed by the immigration officer, you begin to establish credibility to your case. The Immigration Lawyers at The Law Firm of Shihab & Associates are very experienced at analyzing the facts and respectfully presenting them correctly to the USCIS in an RFE response.

Secondly, you must scrutinize the quality and quantity of the legal research conducted by the immigration officer. Determine if the officer identified all the relevant legal authority. Often times, RFE's will present "biolerplate" legal authority. Did the immigration officer properly interpret the law? Did the officer correctly apply the law to the issue and the facts in the case at hand? Did the officer include legal authorities in the RFE, but not use them in the analysis or argument? Don't leave these questions unanswered. If there are flaws in the legal research conducted by the immigration officer, or flaws in the ways by which the officer cited legal authorities, point it out.

Finally, test the immigration officer's arguments. Has the officer adequately connected the issues with the facts and law? Have convincing analogies been developed by the officer? Has the officer adequately answered the questions asked? If there are flaws in the officer's arguments, point them out.

Revise, Revise, Revise....then Revise One More Time!
As Justice Louis Brandeis stated: "There is no such thing as good writing. There is only good rewriting." Justice Brandeis often revised his writing 15 or more times before he was satisfied. While this is obviously extreme, it is suggested that you revise your writing at least three times, more if time and money permit. Excessive use of passive voice, timid phrasing, vague words and other examples of poor writing are often found in first drafts. The lawyers at The Law Firm of Shihab & Associates spend the time to make sure your case is prepared with great diligence to grammer, form, substance and style.

As this article demonstrates, regardless of the inherent strengths or weaknesses of a given case, there is much that can be achieved by mastering the art of preparing a successful RFE response, Motion to Reopen/Reconsider brief or appeal. Our lawyers know this more than anyone!

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 2)" »

USCIS provides minimal guidance regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) response. Unlike other USCIS procedures, CIS does not require the completion of a form when filing an RFE response. This little guidance provides a wide range of possibile methods to responding to the RFE. This article presents techniques that the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates have implemented for preparing a successful responses to USCIS and focuses on the brief in support of an RFE response.

Prepare a Roadmap: Presentation Matters
While this might sound obvious, the most important element of the RFE response is drafting the response itself. Don't spend all your time meeting with the client, gathering facts and conducting legal research. Too often, not enough time is spent on planning and presentation. Remember, an RFE has a strict deadline that often poses a tight timetable to prepare the supporting documentation and legal arguments. As the saying goes, "plan the work; work the plan." This is an axiom the lawyers at The Law Firm of Shihab & Associates live by. You must leave sufficient time to prepare a polished product. Preparing a polished written RFE response does not simply happen. It requires good planning, organization and writing.

Focus on the Facts: Don't Drive from Boston to Chicago via Nashville!
Regardless of what factual informaiton you decide to present, you must determine the order in which to present the facts. Consider the following illustration: If you decide to drive from Boston to Chicago, it is unlikely you would drive first to Baltimore, then to Nashville and finally to Chicago, unless of course time and money were of no concern. Likewise, the immigration officer will expect to see some logical order to the presentation of the facts in your RFE response letter. Don't confuse the Immigration officer by driving from Boston to Chicago via Nashville!

There are various approaches for ordering the presentation of the facts: chronological, biographical (e.g., describing key individuals along with facts associated with them), or transactional. Employ whatever approach you use consistantly throughout the RFE response. Your facts should be presented persuasively without being argumentative. Facts, not opinions, will convince the USCIS officer to look favorably upon your client's case.

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 1)" »

Earlier this week the US Consulate at Mumbai reported that persons filing for Employment Based Permanent Residency in the Second Preference, or the EB-2 preference category, were current. This erroneous report gave false hope many persons from India who hold master's degrees, have endured the PERM process and are currently waiting for a visa to be made available to them. It is unfortunate that a US Consulate would report such a drastic progression of the priority date only to later disappoint the many thousands of people who have waited so long to adjust to Green Card Status.

Just to clarify, the Mumbai consulate's report of current visa availability for persons in the EB-2 preference category was in error. Foreign nationals from India who are waiting for a visa to be made current under the EB-2 preference category must have a priority date of May 8, 2006 in order to file for adjustment of status to Lawful Permanent Resident or Green Card status pursuant to the February 2011 Visa Bulletin.

The Department of Justice announced that it has awarded $720,321 in grants to 13 organizations throughout the country to conduct public education programs for workers and employers about federal protections against immigration-related job discrimination. The grants range from $43,664 to $88,000, and are awarded by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Recipients will assist discrimination victims; conduct seminars for workers, employers and immigration service providers; and place advertisements in local communities through mainstream and ethnic media to educate workers and employers about their rights.

Innovation and start up businesses are going to be the driving force in the Columbus, Ohio economy over the next 20 years. Our firm provides immigration solutions in a variety of forms to businesses of all sizes and varieties, including H-1B visas and E-2 visas. Below, we have listed some of the most popular and useful visas for business owners, managers and human resources professionals to use in order to attract and retain the world's top talent. Our firm will help you grow your business along with the dynamic city of Columbus, Ohio as new business as well as social and economic diversity lead this city to the forefront of United States business centers in the 21st Century.

E-2 Visa Solutions for Small Business Investors

The E-2 investor visa is one of the most popular and useful of all visas for start up and small businesses. In fact, the basic purpose of this visa is to promote foreign investment into the United States. The variety and type of business that is eligible to use the E-2 visa is almost limitless. Some of the most useful advantages of this visa include the relatively low investment threshold of $100,000 that needs to be made by the foreign national into the business. The E-2 visa is also renewable for an unlimited amount of time so long as the business and foreign nationals continue to qualify for the visa. Additionally, the E-2 visa allows for the foreign national to bring their family's over to live and work in the United States.

Non-owners can also obtain E-2 status through a company held by a person on an E-2 visa. Such employees must be executives, supervisors or essential employees so long as the worker holds the same nationality of the E-2 owner.

E-2 Visa Requirements that all start up / small business owners must know

E-2 visas are not just handed out by the USCIS or consular posts. They take some intensive collaboration between attorney and client in order to showcase a startup ventures' attributes. There are also numerous pitfalls for the unwary that must be avoided such as the following:

The funds to be used in the business must be at risk. This means the non-recourse loans will not make the grade when it comes to E-2 investments. The capital invested in the venture must be secured by the investor's own assets. If a loan is required for the business start up, the loan must be tied to the investor's personal assets of some soft.

The funds must be in the process of being invested in the business, within immediate control of the investor. This means that money that is not in hand or is tucked away in some other investment cannot be used to show the investment necessary for the E-2 visa. Rather the funds must be in the investor's control at the time of filing for the visa. One way to nullify the risk of pinning hopes on an E-2 visa that is never won is to place the funds into escrow pending the approval of the E-2 visa.

The business must be a commercial enterprise that is for profit and not for the mere passive ownership of assets.

The investment must be substantial and not fractional compared to the value of the investment. If the business is not worth much money, the ownership stake of the E-2 visa holder must be higher. If the business is worth multi-millions of dollars, the E-2 visa holder can have a lower amount of the worth of the business at risk and invested in the business.

The business cannot be marginal, meaning it must have the potential to eventually provide for more than just a living for the E-2 investor. This proposes a problem for startups as many start ups start small, with little in the way of salary to show for a few years. However, with the aid of a five year business plan, it can be shown to the USCIS that the business has the potential to provide profits for the owner and job opportunities to American Workers.

An E-2 owner must show that he or she is gaining the visa to develop and control the business. This means that the investor must be taking a leadership role in the direction of the activities of the business and has the voting power to veto decisions regarding the business that he or she disagrees with.

Our firm has procured E-2 visas for various types of endeavors from franchises to farms and from grocery stores to gas stations. We have the experience and the ingenuity to aid your start up business as it ventures out in our states capital.

H-1B Visa Solutions for Small Business and Startup Organizations

The H-1B visa is an excellent non-immigrant visa solution for companies who seek to hire a foreign national who holds a bachelors degree in a specialty occupation or its equivalent. Many types of positions can be hired on an H-1B visa basis. Persons who work in a specialty occupation, persons providing assistance to the department of defense through research and development projects and even fashion models can all qualify for an H-1B visa.

H-1B visa requirements that every startup business should know

The employer must pay the employee the prevailing wage for that occupation as decided by the Department of Labor. This can place a financial strain on some start up businesses with limited budgets; however there are four levels of prevailing wage for each occupation. Usually it can be shown that the experience and e4ducation of the foreign national is commensurate with a wage level that is acceptable to the business and the Department of Labor

The employer must be a US employer that has control over the foreign national's day to day work activities. This means that the business must have a federal tax identification number and that the employer must be able to direct the work that the foreign national is doing even when he or she is off site.

H-1B visas are not for self petitioners. This means that the H-1B visa holder cannot be the owner of the business for which they work. There is some debate as to whether holding any type of ownership interest may defeat the H-1B petition, so such issues must be addressed on a case by case basis.

Many of the problems that small or startup organizations face involving H-1B petitions are showing that the occupation is a specialty occupation and the foreign national will not carry out only menial tasks that any person could be trained to perform without a formal education. There a four standards that guide employers in whether or not a position is a specialty occupation:

• A bachelor's degree or its equivalent is normally required for entry into the position
• A bachelor's degree is the norm in the industry for similar organizations, or the position is so complex or unique that a bachelor's degree is required
• The employer normally requires a bachelor's degree
• The nature of the specific duties are so complex that the attainment of a degree is usually associated with the position

These requirements are sometimes difficult for a start up business to show given that start ups usually do not have a long track record of positions with similar duties to highlight. However, with the aid of innovative legal counsel, at least one of these criteria can be successfully argued, and one is all that is needed to succeed.

Finally, it must be shown that the foreign national has the education or experience to qualify for the position offered. Most of the time this requirement is easily met where a person holds a bachelor's degree in a field that is related to the business. When a person's degree is not as congruent with the position offered, some extra time and effort is required to argue that person into the position. This is common where a foreign national does not have a bachelor's degree or holds only a three year bachelor's degree. Equivalency evaluations and experience evaluations can be conducted in order to show that the foreign national qualifies for the job offered.

Continue reading "Columbus Ohio Immigration and Visa Attorney Discusses Temporary Immigration Solutions for Start-up Companies and Small Business" »

This question has been raised by a few of our clients. If you have not turned in your I-94 upon departure, the US will have no record of your departure. This means, according to the US, you are still in the country because your departure was not recorded properly. This article offers assistance to correct this problem.

Ooops, I did not return my I-94 upon Departure
If you leave the country and the CBP (Customs and Border Patrol) officer forgets to collect your I-94, you will be ok if you left by airplane or a cruise ship. Your departure will be automatically verified. So, you do not need to contact the U.S. officials regarding your exit. To be safe, hold on to your outbound boarding pass. This will help CBP officials next time you enter the U.S. andit will expedite the re-entry process so you do not have to explain the error.

However, if you left the U.S. by crossing the boarder on foot or a private plane, you need to take the following actions so that the U.S. government can properly track your exit. The reason for this is that if you don't validate your exit from the U.S., or if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the United States, the CBP officer presumes you stayed in the country past your authorized period of stay indicated on the I-94 arrival record. This can cause CBP to summarily dismiss you from the country. Or if you applied for a visa at a U.S. consulate abroad, it may cause CBP to cancel the visa at the border causing you to have to return home and do the process all over again! If you leave on foot or by private plane and did not turn in your I-94, then the following guidelines will govern what steps you need to take.

Entered under the Visa Waiver Program (VWP)
You must register your exit if you entered pursuant to the VWP. This is because if your I-94 was not taken by a CBP officer when you left, and you entered under the VWP you cannot re-enter the U.S. unless you obtain a visa at a consulate abroad. This is because under the Visa Waiver Program, foreign nationals who remain beyond their authorized stay in the U.S. cannot reenter the U.S. in the future without obtaining a visa from a U.S. Consulate. This is applicable to those foreign nationals who leave the U.S. by land through Canada or Mexico to catch an onward flight home. If you do not register your exit within a reasonable time and you try to re-enter the U.S., the CBP officer will very likely order your immediate return home. Do not worry if you are a VWP visitor and you left the U.S. by a commercial aircraft or cruise ship.

Registering your Exit
To register your exit, first send your I-94 departure record together with any evidence that proves you left the United States to:

DHS - CBP SBU 1084 South Laurel Road London, KY 40744

You do not want to mail your I-94 to any U.S. consulate abroad or to the CBP. Simply mail it to the above address and your information will be updated. Mail the I-94 with as much of the information of your exit as possible. CBP will consider any of the following:

• If you flew home from Canada or Mexico, send the boarding passes from those countries
• Send copies of all the pages of your passport including the departure stamp indicating your entry to another country
• Pay stubs from your employer to show you worked in another country after you left.
• Bank statements showing transactions in another country after you left the United States.
• Any school records showing you attended school in another country after you left the United States, and
• Other such evidence showing that you were living abroad after you left the United States.

Continue reading "Columbus Immigration Lawyer: What happens if I left the U.S. and did not return my I-94 (Departure Record) to CBP?" »

Registration for the 2010 Diversity Visa Program opened again on October 5, 2010 and will remain open until November 3, 2010. This means that right now there is a great opportunity for forging nationals of qualifying countries to file and plan ahead for the prospect of receiving a Green Card from this fantastic program. This fiscal year, 50,000 diversity visas have been made available for persons who come from underrepresented regions of the world and from countries that send less than 50,000 immigrants to the United States per year. However, to qualify for this program, the applicant must follow some simple yet strict eligibility requirements. Below, we have provided some general guidance for interested immigrants to study as they consider this fantastic opportunity.

Foreign National Must Be From a Country of Eligibility

Only foreign nationals of certain countries that are underrepresented in immigration to the United States may qualify for the diversity visa lottery. Foreign nationals from countries that have sent over 50,000 immigrants to the United States in the past year are not eligible. A list of the countries that are not eligible this year for the DV lottery is as follows:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

Persons from countries not listed above are eligible to apply to the DV Visa lottery. Additionally, a person may use the nationality of his or her spouse to register for the lottery if the couple was married before registration for the DV lottery. Must have a High School Diploma or Work Experience Equivalent

The diversity lottery is only available to those persons who have a high school education or two years of experience in certain occupations. The Department of State has given clarification to what it means by "high school education" and "work experience."

High School diploma means that the foreign national must be able to provide academic records that would enable him or her to enroll at a United States university. Basically, this means that the high school diploma must have been gained from a twelve year program of primary and secondary school education. Diplomas from correspondence programs and General Education Diplomas are not accepted for the diversity visa lottery.

The work experience that qualifies an applicant for the DV lottery is two (2) years of work experience within the last five (5) most recent years in an occupation that requires at least two (2) years of training or experience. The Department of State decides which occupations require at least two years of experience to perform by looking to the O*NET occupational rating systems that has been set up by the Department of Labor. O*NET rates how much preparation is needed for certain jobs by assigning them a "job zone" rating of one through five. Level one jobs need the least preparation and level five jobs need the most preparation to perform. For purposes of the DV lottery, only jobs with a ranking of four or five will qualify for the necessary experience needed for persons to apply without a high school diploma. Please utilize the drop down menu at this link to find the job zone number of the job you possess.

Requirement of obtaining the visa within the fiscal year of application

Visas for winners of the diversity lottery must have their visa issued between October 1, 2011 and September 30, 2012. Foreign nationals who are currently present in the United States may adjust their status with the USCIS, provided they are eligible for an adjustment of status. A common problem occurs when a foreign national is present in the United States on J-1 status. In such cases, a waiver of the requirement that the foreign national return home must be had. There is only a short amount of time to receive the visa, so waiver cases must be anticipated and completed quickly.

Continue reading "Columbus, Ohio Immigration Lawyer Discusses Diversity Immigrants: The DV Lottery" »

The United States Citizenship and Immigration Service has recently announced the manner in which it intends to re-write the standards by which it adjudicates Employment Based Green Card Petitions filed under the EB-1 preference category for Aliens of Extraordinary Ability, Outstanding Professors and Researchers as well as alien's of Exceptional Ability (usually executives). Filing for a Green Card under the EB-1 preference category allows foreign nationals who wish to become permanent residents, the chance to completely bypass the PERM process and file the I-140, Petition for an Immigrant Worker directly to the USCIS. After years of adding extraneous requirements to the federal regulations coving the topic of EB-1, the Federal Circuit Courts began to overturn USCIS policy decisions in the field of EB-1 because of the USCIS's imposition of evidentiary requirements beyond the requirements written into the law by Congress. As a result, the USCIS has issued new guidance to its officers in the field, which the agency hopes will bring its determinations of EB-1 petitions into closer compliance with the holdings of the Federal Circuit Courts of Appeal.

What types of EB-1 petitions will be affected by these changes?

The new changes in the way that the USCIS decides EB-1 petitions will affect all applications filed under EB-1. This includes aliens of extraordinary who have risen to the very top of their field of endeavor, whether it is science, art or athletics. The new policy guidance will also affect outstanding professors and researchers who are recognized internationally for their eminence and distinction. Finally, the new rules will affect EB-1 petitions filed for aliens who will substantially benefit the United States because of their exceptional ability in the sciences, arts or business. (the category typically used for multi-national business executives)

What has changed that affects all of these categories at the same time?

On March 4, 2010, the U.S. Court of Appeals for the Ninth Circuit indicated displeasure in the manner that the USCIS had been adjudicating EB-1 cases. Specifically, the court in Kazarian v. USCIS, 596 F.3d 1115,C.A.9 (Cal.), March 04, 2010 found that the USCIS had added evidentiary requirements over and above what Congress had written into the federal regulations concerning EB-1 petitions. For purposes of establishing the context of this decision, the USCIS is given leeway to interpret and enforce federal regulations as many federal regulations are not specific in how they should be applied. However, the USCIS is not permitted to change the substance of the law in a way that contradicts or adds new requirements to the federal regulations because federal regulations handed down by Congress trump the rules of Federal Agencies who are entrusted to enforce these laws.

Each type of EB-1 visa requires that the Petitioner show that he or she has achieved notoriety in various ways. In regards to EB-1-2 petitions for professors and researchers, Congress has decided that the petitioner must establish a level of notoriety in two of six available categories of evidence in order to prove that the petitioner stands apart in the academic community through eminence and distinction. The subject of the case noted above, Mr. Kazarian, a professor, made an argument in his petitions that he (a) had participated as a judge of the work of others and (b) had authored scholarly articles in the field, published in major professional, trade publications or other major media. The USCIS was dismissive of the evidence given in these two evidentiary categories, essentially holding that the panel that Mr. Kazarian judged on was within his own university and not important. Additionally, the USCIS held that the scholarly articles that Mr. Kazarian had written did not garner enough reaction or attention from the academic community, and were not internationally recognized. The ninth circuit took issue with the USCIS's reasoning, holding that "Nothing in that provision suggests that whether judging university dissertations counts as evidence turns on which university the judge is affiliated with" and that "Nothing in that provision requires a petitioner to demonstrate the research community's reaction to his published articles before those articles can be considered as evidence..." Essentially, the court held that the USCIS had added additional substantive requirements to the law in dismissing this evidence at the outset, essentially crippling Mr. Kazarian's case before the entirety of the petition could be analyzed for proof of international recognition.

What is the significance of ruling in Kazarian?

The holding in Kazarian has prompted the USCIS to reevaluate its approach to adjudication of EB-1 cases in all categories. The USCIS has now adopted at two-prong method of adjudication in EB-1 cases. First, the adjudicating officer is to examine the evidence submitted to meet each individual evidentiary prong in the visa petition, scanning only to make sure that the evidence is legitimate, relevant, fits with the category and is credible. If the evidence submitted for that prong meets this initial review, it is counted toward meeting that evidentiary prong.

The new two part analysis of EB-1 petitions

As an example, as stated in the federal regulations, one of the six evidentiary prongs of evidence that will prove that a professor or researcher is outstanding is "Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members." Being named to an executive position in a research organization as a result of the alien's accomplishments and expertise in research within the University that the alien works for will probably be counted toward this evidentiary prong, provided that the evidence submitted is legitimate and credible. Aside from initial observations of whether the evidence submitted fits the category to be proven, the adjudicating officer is to count the prong as completed and move on to the next prong.

The second prong of adjudication comes into play at the end of the adjudicator's analysis. Specifically, the officer is to make "a final merits determination" to decide if the evidence provided as a whole meets the high standards of the visa category. For outstanding researchers that standard that needs to be met is "recognized internationally as outstanding in a specific academic area" In the example above, the adjudicating officer would take into account whether or not the minimum number of prongs had been met, then judge the entirety of the evidence against the "internationally recognized as outstanding" standard. These evidentiary standards must be met by a more-likely than not or more than 50% likely) preponderance of the evidence) standard. If the evidence shows that the necessary amount of evidentiary prongs are met, and that the outstanding nature of the alien has been proven by the evidence as a whole, than the visa should be issued as requested.

Going back to the example above, while executive appointment in a University research committee may be probative and relevant for initially proving the category, the adjudicating officer would then re-examine the evidence of committee membership at the University level to see if such a position was indicative of international recognition. In this example, such a University level position would not carry as much weight, in most instances, as selection to international organizations such as Sigma Xi when analyzing the evidence as a whole.

Continue reading "USCIS Changes the Rules for Adjudicating for all EB-1 Green Card Cases" »

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and The Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Continue reading "The Most Appalling and Unconstitutional Aspects of Arizona's SB1070 Blocked by Federal Court" »

The Regional Center Pilot Program offers an exiting avenue to a fast track Green Card for foreign nationals who wish to invest $1,000,000 and in some circumstances only $500,000 into a business association that advances economic expansion, productivity, job formation and increased monetary investment into a definable geographic area of the United States. The main advantage of the Regional Center variety of EB-5 employment creation green card is that unlike in the traditional EB-5 category where it must be shown that at least 10 jobs will be directly created from the investment, regional center investors may take into account indirectly created jobs. This means that regional center business associations do not need to create a payroll position for all ten jobs that are created. Rather, under the regional center program, the jobs of supporting staff, service people and contractors may be counted toward the 10 new jobs requirement. As a result, the Regional Center model creates a very attractive vehicle for a business association to attract large amounts of investors and their capital to the United States.

Proving that a regional center meets EB-5 job creation criteria

The organizers of the regional center must first prove the viability of the investment both in regard to the probability of success of the business and immigration law aspects. This requires a highly professional economic impact study of the proposed investment as well as a comprehensive petition package, addressing all of the economic and legal aspects of the proposed regional center before the USCIS.

Below is a list of the major points that must be conclusively established in order to establish a regional center before the USCIS:

Managerial Framework of the Regional Center

The petition must clearly demonstrate the managerial and executive structure of the regional center. Additionally, the petition must demonstrate how the center will be advertised to entice investors, how management discovers and analyzes investment opportunities for the business organization, how management will structure the venture investment and how management will supervise investment actions.

Comprehensive forecast of local and countrywide impact of the center on household earnings

A detailed business plan and report on anticipated expenses must be included within the petition. The document must not only show the direct expenses such as construction costs, maintenance costs services, repairs and utilities, but the report must also show the economic impact of all of these activities on the income of the people of the region.

Professional report on how the regional center will generate both direct and indirect jobs

It is not sufficient to merely assume that a set amount of invested dollars will create the requisite 10 jobs per Green Card applicant. In order to secure certification as a regional pilot center, the organizers must have a professional economic study conducted by a reputable organization to ensure success of the application before the USCIS. In fact, such a report often makes or breaks the case for a regional center. The report must be supported by economically and statistically legitimate calculations such as viability evaluations, breakdowns of overseas and national markets for goods or services produced and graphical representations of the equations used to estimate jobs created per investor.

Plainly observable, physically adjacent area for the regional center

The regional center must have an intended area on which to impact financially. The definition of area varies by the type of investment and the population density of the surrounding land. For example a regional center based on investment in farming may have an identifiable region as large as several counties or sections of a state. A regional center based upon real-estate development however may only affect a relatively small landmass.

Continue reading "Columbus Immigration Attorney Discusses the EB-5 Regional Center Pilot Program Avenue to Permanent Residency Part 1: Establishing the Regional Center" »

Aliens applying for a green card in the United States through adjustment of status need to obtain an employment authorization document (EAD) to work in the U.S. Current regulations allow for aliens to obtain an interim EAD card when the original EAD application is pending for more than 90 days.

Question: How does one apply for an interim Employment Authorization Document?

The U.S. Citizenship and Immigration Services (USCIS) is required by federal regulations to decide an application for employment authorization I-765 (EAD) within 90 days from the date the EAD application is received. Generally speaking, the USCIS takes anywhere from 45-90 days to make a decision on a filed EAD. Under current regulations, if USCIS does not decide the application by the 90 day deadline, federal regulations instruct USCIS to issue an interim Employment Authorization Document (EAD), which is valid for up to 240 days. This allows the alien to work when USCIS has otherwise failed to meet its statutory and regulatory obligations.

As a Columbus Ohio Immigration Lawyers, our clients request clarification regarding the procedure for obtaining interim Employment Authorization Documents. Presently, interim EADs are issued by USCIS service centers. Since 2005, USCIS local offices no longer issue interim EAD cards. The local offices used to issue interim EADs upon an in person request by the application. This is no longer true. The below procedures govern the process by which an applicant can obtain an interim EAD allowing the alien to take up employment in the U.S. faster so that he/she does not have to wait for a slow moving bureaucratic governmental agency.

Procedure for Obtaining an Interim EAD Card:

1. Make an Info-Pass Appointment. If USCIS has not adjudicated the employment authorization application (I-765), or issued an interim EAD by day 90, an alien is required to make an Info-Pass appointment at the nearest USCIS local field office. Click here for further information on scheduling the appointment.
2. USCIS field office CLAIMS Evaluation. After the info-pass appointment has been scheduled, the USCIS local office will perform a Computer Linked Application Information Management System (CLAIMS) evaluation. This ensures that the original I-765 EAD application is still pending and unadjudicated, that there is no request for evidence (RFE) on file regarding the application (which effectively restarts or tolls the 90 day period), and the applicant has undergone his/her biometric fingerprinting.
3. The applicant must have completed a biometrics appointment. The CLAIMS verification will determine whether the applicant has undergone fingerprinting. If they have not, the USCIS local office will refer the applicant to obtain biometrics at the USCIS Application Center (ASC). The applicant must have his/her biometrics completed to obtain an interm EAD.
4. Case refered to USCIS Service Center. After the CLAIMS verification process is complete, the local office will contact the Service Center with jurisdiction over the applicant's U.S. residence. At this point, the Service Center will be responsible for adjudicating the interim EAD.
5. Call 1-800-375-5283 if the interim EAD is not issued by the Service Center by the time the applicant appears at the local office. The applicant may make a status inquiry via telephone to the Service Center while in the local office. All inquiries should be responded to within 30 days.

Question: What are the documents needed for obtaining an interim EAD

In order to obtain an interim employment authorization document the applicant should bring the following items to the USCIS Info-Pass appointment:

1. A new, completed Application for Employment Authorization (Form I-765);
2. The original Notice of Action (Form I-797) notice of receipt of the underlying pending EAD (I-765) application
3. The original Notice of Action (I-797) receipt notice for the underlying pending application which gives rise to the employment authorization such as a green card application receipt notice (I-485) and/or petition for alien relative (I-130 approval notice);
4. The applicant needs all present and past passports and Form I-94s;
5. Two passport-style photographs according to these specifications;
6. Proof of U.S. residency, such as state issued photo ID or driver's license (for proof of USCIS office jurisdiction); and
7. All current and expired EAD cards issued to the applicant.

Question: What happens when USCIS has issued an RFE on the pending application for employment authorization (I-765)? Can you still obtain an interim EAD?

A request for evidence (RFE) affects the applicant's eligibility for an interim EAD depending on the type of evidence requested in the RFE. If the RFE seeks "initial evidence", i.e., evidence mandated under federal regulations in order to obtain employment authorization, then USCIS will restart the 90 adjudication timeline. The evidence requested must have been required to obtain the EAD from the get go. Once the evidence has been gathered and the RFE has been responded to, USCIS will start the 90 adjudication clock over upon receipt of the response. Therefore, it is a must to make sure you submit all required evidence up front so that the 90 day clock does not get reset.

But, if the RFE seeks evidence not required under federal regulations, the USCIS will "toll" the 90 day deadline until it receives the RFE response, at which point USCIS will resume counting at the point that the clock was interrupted by the RFE. Tolling simply means that the 90 clock will be suspended at the point the RFE was issued (say at day 46). If the RFE is responded to 14 days later, the clock will be "tolled" for those 14 days and counting will begin again at day 47 upon receipt of the response to the RFE.

Continue reading "Columbus Immigration Lawyer: Interim Employment Authorization EAD Processing for Long Pending EAD Applications" »