Articles Posted in Adjustment of Status

With the recent escalation of armed conflicts in countries like Iraq and Syria, many seek to escape the war-torn areas in search of safety and freedom. The freedom of religion and political opinion that is greatly cherished here in America, is the cause of violence and turmoil amongst the Muslim nations in the Middle East.   In both Iraq and Syria, the ongoing tension and division between the Sunni and Shiite’s has many seeking refuge.

According to the Council on Foreign Relations, the ancient religious divide is helping fuel a resurgence of conflicts and the struggle between Sunni and Shiite forces have fed a Syrian civil war and spurred violence that is fracturing Iraq. This violence includes kidnapping, torture, rape and executions of civilians.

In a recently released report by Amnesty International, which covers human rights violations, it was revealed that Iraqi people are not only suffering from atrocities committed by ISIS militants but also from the armed government-backed Shiite militants. The report claims that the Iraqi government is responsible for the attacks on the civilians since the Shiite militias that target Sunni Iraqis, do so in response to the ISIS attacks. As a result, the ongoing cycle leaves the Shiite civilians targeted by ISIS, whereas the Sunni Muslim’s in Iraq are trapped between the Shiite Militia, the government and ISIS militants who attack anyone that opposes them (including the Sunnis).

maize.jpgIn this article we discuss the effect that USCIS regulations have on immigrant investors whose operations may need a course correction in order to fulfill the requirements of the EB-5 program–and how best to proceed in light of them. In another article, we detail the difficulty in the program that makes this an issue, and USCIS’s reaction to it. The agency has issued guidance that is at best insufficient and dangerous at worst. The potential issues and inadequate government response to them necessitates independent analysis.

An example may prove illustrative: a typical EB-5 investor is running a restaurant. Over a year into the conditional residence period, the business isn’t doing very well. A local university has opened a branch campus nearby, drawing in a few major restaurant chains. Students and original customers alike are flocking to these other restaurants. However, no new coffee-houses, where students spend a great deal of time and money, have appeared yet. In this case, converting the restaurant into a coffee-house would seem like the best bet. However, the I-526 business plan specifically envisioned a sit-down restaurant with tipped waiters.

Assuming the investor wishes to avoid the negative consequences of filing a new I-526 (detailed in the other article), the options are few. The most obvious one is to simply record the changes in the I-829 petition to remove residence conditions. However, this will intrigue a USCIS officer and invite serious scrutiny. Even if the evidence of job creation is rock-solid, this could lead to a denial. (Of course, failure to record such changes is even riskier.) The position apparently taken here by the government is “if there were changes, they had better have been worth it, though we reserve the right to deny.” This seems unfair–and in fact is not necessitated by law. It is due only to an interpretation of USCIS regulation, which is often much stricter than statute.

maze.pngStarting a business can be difficult. Sometimes an initial investment and a dream aren’t enough to create permanent jobs (or even profits for the entrepreneur); success is often the result of trial and error. However, in the case of EB-5 investing, the potential for changes in business plan add an extra dimension of difficulty. The issue originates in filing procedure. A business plan must be submitted as part of the petition to start the process, before the immigrant begins conditional residence. USCIS will then expect that the business plan included in the original petition is followed in order to fulfill the job creation requirement to receive unconditional permanent residence.

The expected timeline for an EB-5 investor (that doesn’t use a regional center) appears straightforward. A business plan must be drafted and $1,000,000 (or $500,000 for Target Employment Areas) must be secured. The investor then files the I-526 petition with this information, its approval implying that USCIS thinks the plan is feasible. Once this happens, the immigrant undergoes the normal process for obtaining a green card, though the one received at this stage is only good for two years. During those years, he or she must follow the approved business plan and create at least ten full time W-2 positions. If this has happened by the end of two years, the immigrant investor will receive approval on the I-829 petition to remove conditions on residence.

While many investors have been able to do this, in part thanks to competent legal counsel, the expectation seems somewhat unrealistic. It rests on the apparent assertion that it is possible to successfully predict two years’ worth of economic activity (with no chance to course-correct as needed). USCIS holds that in order for the investor to stay eligible for successful immigration, there cannot be any “material changes” made to the approved business plan. (The term “material changes” lacks specific definition; unfortunately giving USCIS the ability to decide what it means on a case-by-case basis.) This makes things much harder for immigrant investors. Of course, one will be in good shape if the business plan can be followed lucratively enough to sustain 10 permanent jobs. Short of abandoning the project, however, this leaves someone whose EB-5 business is in need of improvements to the original plan with two options: either report the deviations in the petition to remove conditions–or don’t. USCIS has implied that both of these increase the chance of denial.

snapshot3.pngWhen a foreign national (FN) begins the immigration process, his or her case will be assigned what is called a priority date. This date is generally the calendar day Citizenship and Immigration Services received the original immigration petition–and represents the FN’s place in his or her line. In both case types, employment-based (EB) and family-sponsored (F), there are several legal avenues or methods an FN can use in an immigration petition. These legal avenues are formally known as “preference categories.”

For the purpose of this explanation, it will be productive to say that in each of these categories, there are five “pathways” to receiving permanent residence (or “a green card”). The pathway used is determined by the nationality of the FN, and there is one for each of the four oversubscribed nationalities of India, China, Mexico, and the Philippines. The last one is for all other nationalities. If a nationality is oversubscribed, it is bumping against the annual universal per-country limit.

The metaphor of five pathways in each preference category (of both case types) is useful because it allows the further metaphor of “lines.” Some pathways aren’t used very often, so they don’t have lines to get through them, but popular pathways do. Thus, how long an FN must wait in line to use a preference category (to get a green card) depends on his or her national pathway. Each preference category has its own annual limit as well, so if an FN’s petition falls into a category that isn’t at its limit–and he or she isn’t of an oversubscribed nationality–the only waiting time will be how long it takes the government to consider the case. There would be no line in the pathway.

snapshot3.pngImmigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a “line” to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at www.shihabimmigrationfirm.com/visa-bulletin.html. It is the result of several government agencies’ efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works–and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an “immediate relative” relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called “preference categories,” with “first preference,” etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher “preference”) doesn’t use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn’t use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world’s population, its effect is clear. People from those countries aren’t going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered “oversubscribed”): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn’t think that there’s a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country–and how many are using the same preference category.

immigration-rally-2-520993-m.jpgModernizing the PERM Process

There are some problems with the current labor certification process, which is also known the PERM process. PERM (which stands for program electronic review management), is the first step to obtaining employment based permanent residence. It must be approved before an I-140, immigrant petition for alien worker is filed. Its intended function is to be the vehicle in which an American company begins to hire someone who isn’t in this country for a future position that no qualified American worker is now applying for. This creates much uncertainty for the employer and the alien future employee.

The law requires that employment-based immigrants aren’t “taking away” jobs that qualified American workers are seeking, so the employer must place a job advertisement for at least thirty days. This step ensures that the company isn’t hiding the job from American workers–that the process was open and fair. In addition, the company must prove it isn’t trying to hire a foreign national because it thinks it can pay immigrants less than American workers. This procedure (known as the prevailing wage determination) involves the Department of Labor and can alone take several months.

passport clock.jpgOn November 14, 2013, the United State Citizen and Immigration Service (USCIS) issued a Policy Memorandum with guidance on how to adjudicate adjustment of status (AOS) applications filed by immediate relatives of U.S. citizens who entered the Unites States under the Visa Waiver Program (VWP). Below is a discussion of the Visa Waiver Program and how the new policy may affect you.

Who is eligible to adjust status under the VWP?
Immediate relatives (children, parents and spouses) of U.S. citizens who last entered the United States under the VWP may adjust status to permanent residence unless subject to a section 217 removal order.

*The remainder of this article pertains to immediate relatives of U.S. citizens who last entered the United States under the VWP*

What if I filed my I-485 after the 90-day period of admission?
If you are an immediate relative of a U.S. citizen and last entered the United States under the VWP, a USCIS field office may, in its discretion grant adjustment of status even if you filed your I-485 application after the 90-day period of admission, unless:

  • ICE has issued a removal order;
  • you are under investigation or arrested for, or convicted of an egregious public safety offense; or
  • fraud and/or national security issues need to be resolved.

Can I adjust my status even if ICE has already issued a removal order?
Maybe. If ICE has issued a removal order, then USCIS is advised to, in its discretion, deny your application to adjust status. USCIS may properly approve your I-485 only if ICE rescinds or withdraws the removal order. In other words, you cannot use adjustment of status as a defense to removal.

What if I overstayed my VWP status, but filed my I-485 application within the 90-day period of admission?

If you are an immediate relative of a U.S. citizen who overstayed your VWP duration of status, but filed your I-485 application before the 90-day period of admission, then USCIS may still adjudicate your case. But if USCIS has already denied your application to adjust status, then you may not appeal the decision and your case will be referred to the local ICE office to be considered as a section 217 removal order.

However, if you live in Alaska, Washington, Oregon, Idaho, Montana, Nevada, California, Arizona, Hawaii, Guam, or the Northern Mariana Islands then an exception may apply to your case. If you are an immediate relative of a U.S. citizen who overstayed your VWP duration of status, but filed your I-485 application within the 90-day period of admission while living in one of these territories and your case was denied, then you may be placed in removal proceedings under section 240. As in all other territories, if your I-485 application was filed after the 90-day admission period and your case was denied, then your case will be referred to the local ICE office and be considered as a 217 removal order.

What if I am under investigation, have been arrested or convicted of an “egregious public safety offense” or if there are fraud or national security issues with my case that still need to be resolved?
If you are under investigation for, have been arrested for, or convicted of an egregious public safety offense, then USCIS is advised not to adjudicate your case. Instead, the USCIS officer will follow the procedures outlined in the National Background Identity and Security Checks Operating Procedures (NaBISCOP) Handbook.

Similarly, if there are fraud and/or national security issues with your case that still need to be resolved, then USCIS will not adjudicate your case. The USCIS officer will follow the guidance contained in the Fraud Detection and National Security Standard Operating Procedures (FOUO).

What if I was refused admission under the VWP?
If you are an immediate relative of a U.S. citizen and applied for adjustment of status but were refused admission into the United States under the VWP, then you eligibility for AOS depends on your custody status. If you are detained or if your release was based on anything other than parole granted for humanitarian reasons or significant public benefit under INA section 212(d)(5)(A), then you cannot adjust status.

If the USCIS officer finds that you were denied admission based on inadmissibility grounds and inadmissibility is not waived, then the USCIS officer has discretion to deny your application.
Continue reading