Articles Posted in Self Petitioned

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.
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The Regional Center Pilot Program offers an exciting 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
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EAD2.jpgAliens 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?
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dreamstime_4189431[1].JPGThe American Immigration Lawyers Association (“AILA”) posted on its website processing times for the Administrative Appeals Office, the AAO. The AAO has authority to review certain applications denied by the US CItizenship & Immigration Service (“USCIS”). Decisions issued by the AAO have been controversial as the USCIS may or may not be bound by them as a “legal precedence” or “lawmaking authority” as the American legal system normally operates. Hence, practitioners in the field of immigration law have found the administrative appeals before the AAO as futile and time consuming process. Nonetheless, applicants and petitioners whose cases have been denied by the USCIS have the legal obligation to “exhaust their administrative remedy” before taking their cases to Federal Court to challenge the USCIS’ denial. In other words, the Federal Court system may not accept a challenge to a USCIS decision prior to having them try to resolve the matter before the AAO. Hence, the AAO appeals step is viewed by many as a necessary step, though time consuming.

Below, please find the most recent AAO Processing Times. As can be seen, it may take more than a year to review an H-1B visa case denial. An EB-2 or EB-3 I-140 denial may take 2 years to appeal before the AAO. In comparison, an alien entrepreneur petition form I-526 denial will take 6 months to appeal before the AAO.
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DNA.jpgAlmost all foreign nationals who seek permanent residence, commonly known as a Green Card, through the employment based avenues of permanent immigration must test the local job market via the PERM process. However, for foreign nationals holding a master’s degree or a bachelor’s plus five years of experience, there is a little utilized waiver of the requirement that the job market be tested by the expensive and time consuming PERM process. For certain highly educated foreign nationals whose area of expertise holds substantial intrinsic merit and the effect of their work would be national in scope, a National Interest Waiver of the PERM process may be available.

Requirements of a National Interest Waiver (NIW) of the PERM Process

The National Interest Waiver has the effect of bypassing the PERM process and placing the potential applicant directly into the I-140 stage of the Green Card process under the EB-2 preference category. While skipping the PERM process is beneficial for all foreign nationals applying for employment based permanent residence, foreign nationals from countries other than China or India will find themselves with a Green Card immediately available upon approval of an I-140 under EB-2. Additionally, foreign nationals from China and India can enjoy the faster processing time of the EB-2 preference category and the peace of mind that the job market does not need to be tested in this economy before they can apply for an employment based Green Card.
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сканирование0003.JPGCOLUMBUS, Ohio – May 19, 2010, Gus M. Shihab with The Law Firm of Shihab & Associates, Co., LPA filed on behalf of Integrity Gymnastics & Cheerleading a declaratory judgment action against the United States Citizenship & Immigration Services due to its denial of Natalia Laschenova’s immigrant visa petition.

Ms. Laschenova won an Olympic Gold Medal in gymnastics in the 1988 Olympics. Integrity Gymnastics petitioned the USCIS to qualify Ms. Laschenova as an “alien of extraordinary abilities” as a Olympic Gold Medalist and gymnastics coach in the U.S. Ms. Laschenova’s case was denied and she is currently in the U.S. without status and is subject to deportation. All administrative remedies within the Department of Homeland Security have been exhausted hence Integrity Gymnastics is seeking a declaration by the Federal District Court for the Southern District of Ohio that she qualifies as an alien of extraordinary abilities.
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Columbus Ohio.jpgArizona has recently passed one of the harshest anti-immigration bills in America’s modern history. While the bill is obviously aimed at those persons who have entered the United States from Mexico without inspection, the effects of this bill will be felt in all immigrant communities. The law gives state and local officers the authority to arrest and detain any person in violation of federal immigration law as well as proscribing punishments for those who aid immigration law violators. Those persons who are present in the United States on valid employment based visas, such as H-1B, L-1 and H-2A, as well as those persons who are eligible or have applied for a Green Card or Legal Permanent Residency through the PERM process or family based petition, now must be extra careful to remain in valid immigration status at all times and above all else always carry their “papers” on them. Just as the tide raises all boats, Arizona’s law will affect all immigrants and their employers within that state

On the heels of Arizona’s new law, certain Ohio senators have begun the process of drafting copycat legislation. The consequences of such legislation for Ohio business if such legislation were to be passed could be very grave. A bill that damages the confidence of Ohio’s vital, skilled and hard working immigrant population in the state’s openness and welcome for immigrants in general would do unnecessary harm to Ohio’s already recession weakened economy. Before Ohioans jump on the anti-immigration bandwagon, perhaps they should instigate the wording of Arizona’s legislation and its potential to harm Ohio’s economy.
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Thumbnail image for key to victory.jpgIf you are residing abroad and have recently had your immigrant or nonimmigrant visa application denied by a consulate officer, you may request an advisory opinion from the Department of State’s Visa Office Advisory Opinions Division (AOD) and “open the door” to a denied case. With the powerful advisory opinion, a foreign national has the opportunity to obtain the original visa classification sought instead of filing an entirely new case from the start.

When a foreign national files for an immigrant or nonimmigrant visa from a consulate abroad, the consulate officer may erroneously deny the petition taking an incorrect legal position. The foreign national may not feel that s/he has any options for appeal. However, an attorney may request an advisory opinion from the Department of State’s Visa Office Advisory Opinions Division (AOD). If the AOD agrees with the attorney and issues the advisory opinion, the consular officer’s determination will be overturned allowing the foreign national to obtain the visa s/he is seeking. This is a very powerful tool that not many foreign nationals know exists. This article discusses the various advisory opinion procedures and discusses the benefits of requesting the advisory opinion especially when the foreign national’s petition has been incorrectly denied.
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Tax Papers.jpgLegal Permanent Residency/ Green Card: Tax Issues

Foreign nationals seeking legal permanent residency (LPR Status or a Green Card) through the PERM process, other employment based petitions or through the various family based avenues will inevitably face various tax issues. All foreign nationals applying for such status must abide by certain federal regulations and burdens of proof addressing the tax issue. As the deadline for filing personal income tax returns bears down upon all persons who derive income from the United States, now is an opportune time to discuss some of the common issues that Green Card applicants and Legal Permanent Residents face.
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Natalia Laschenova.jpgUSCIS and Administrative Appeals Office (“AAO”) both deny EB-1 Petition Filed by 1988 Olympic Gold Medalist and World Champion Natalia Laschenova Stating that She is Not An Alien with Extraordianry Abilities

I was contacted by Columbus, Ohio Chanel 10 reporter a couple of ago about a story he was investigating on an Olympian Gold Medalist called Natalia Laschenova from Russia whose immigration status was denied by the USCIS. I called Natalia and I could not but believe that this is the same 14 year old who shocked the world winning a Gold Medal in Seoul Korea in 1988 at the age of 14 (watch Video). After talking to Natalia, I was also shocked to learn about her plight with the USCIS which had been ongoing for 10 years now. I agreed to meet the reporter and he ran the following news piece (watch here).
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