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USCIS Clarifies and Expands Immigration Benefits for Military Families

November 24, 2016

USCIS Clarifies and Expands Immigration Benefits for Military Families

Author: NYC Immigration Lawyer Alena Shautsova

USCIS published new memorandum explaining and expanding benefits for military families. Specifically, the memorandum clarifies that adult sons and daughters of former or present military personnel can apply for parole in place.  It is true for deceased  or discharged members of the military as well, as long as the discharge was honorable.

Parole in place is an important benefit that 1). allows to adjust those who have immigration petitions filed by immediate relatives; and 2). allows its holders to apply for an employment authorization.

Importantly, USCIS clarified that relatives of enlistees are also  eligible for these benefits. Of course, each case would be decided on specific facts.

USCIS: ” Because covered military personnel and veterans generally will be U.S. citizens or lawful permanent residents (or, in the case of MAVNI, soon-to-be U.S. citizens or lawful permanent residents), their sons and daughters will often be on paths to lawful permanent resident status and eventual citizenship. See INA § 203(a), 8 U.S.C. § 1153(a). Parole in place or deferred action would therefore serve as a temporary bridge for such sons and daughters while they apply for and await adjudication of their applications for lawful permanent resident status. ”

 

Trump’s Employment Immigration Plans

November 22, 2016

Trump’s Employment Immigration Plans

Author: Employment Immigration Attorney Alena Shautsova

Today President-elect Trump announced that during his first day of presidency, he is going to implement an executive action affecting Employment Immigration. To wit: Trump announced that his team would be working on tightening Employment Immigration laws to make sure that employment places would be saved for U.S. workers opposed to being given to immigrants.

It seems that somehow, President-elect Trump believes that by making it even harder for U.S. employers to employ foreign workers, U.S. workers will benefit from it and will accept employment spaces that somehow are taken from them.

To begin with, I must state that for a foreign worker to start working in the US on an H1B visa (the most common work visa type), the employer must test the market by posting notes to all interested workers and by posting ads regarding the job.  If, and only if, the employer does not find an eligible U.S. worker, an employer can hire a foreigner. But even prior to that, the U.S. laws impose a cap, a limitation on how many foreign workers can be hired at a given year in the United States.

Here is what is really going on: an employer would start going through the process only if the employer already has in  mind a foreign worker he/she needs to hire. An employer who hires a foreigner must pay him/her required wages that often are higher than the going market wage. In other words, an employer (unlike in the case of a US worker) cannot set a wage below required by the Department of Labor. I am positive that if a US worker were available, a worker that meets all the requirements and experience for the job, an employer would not be jumping through the hoops by trying to go through the process that requires money, time and induces an unwanted stress on all involved. By imposing restrictions on the hiring process, US laws limit US employers’ choices in hiring those who are most suitable for the job, impeding an employer’s ability to develop.

It is a different matter that sometimes the H1b process is not real, and a foreigner is “hired” for a position that does not exist just so that a foreigner may benefit from the US Immigration laws. It is an Immigration fraud, but no foreigner, in this case, takes a job from  a US worker: the job never existed, to begin with.

There are other types of Immigration work visas: TN, O, P, R, and L. They come with various restrictions and are used for those workers who either work in specific occupations or possess outstanding qualifications.

Interestingly, Mr. Trump’s wife allegedly came to the US on a work visa.

I am not sure (as it was not announced) about the specific of the coming changes. I hope that these changes would take into consideration that immigrants, and many of them, contribute to the development of the United States. The employer should have a choice who to hire, finding the best, the most hardworking and talented employees.

 

National Visa Center: Processing Times and More

November 16, 2016

National Visa Center: Processing Times and More

Author: New York Immigration attorney Alena Shautsova

National Visa Center  (NVC) is an agency that processes documents of petitioners before an appointment is scheduled in U.S. consulates. Every time somebody from the United States is sponsoring a family member or a worker, NVC would be involved.

Those lucky applicants who have an attorney working for them, would probably not worry about the points that I will be discussing below. However, if you represent yourself, and you are the one who has to deal with the NVC these points might be helpful.

1. Before any process for an immigrant visa would start, the beneficiary has to pay appropriate fees: an affidavit of support fee (currently $125) and an immigrant visa fee (currently $325).  The fees should be paid online. NVC is departing from the practice of collecting the fees by mail.

2. One can find a list of documents that he/she should submit to the NVC on Department of State website: https://travel.state.gov/content/visas/en/immigrate/immigrant-process/documents/Submit_documents.html.

3. All the documents, including an original of the affidavit of support form I 864 should be submitted, preferably, at once. However, it is possible to submit documents gradually.

4. How fast does NVC work? It takes about 10-15 days for the NVC to enter the case into their system once the case is received. It takes about 30 days to review a submission, and about 60 days to schedule an appointment for a complete case.

5. A mailer should use a cover letter provided by the NVC, and if a petitioner is sponsoring multiple beneficiaries, separate packages should be created for each.

It is possible for some applicants from certain countries to submit documents to the NVC via email. For the rest of the countries, NVC accepts documents by mail only.

NVC accepts only copies of the documents. All the originals, an immigrant visa applicant has to bring with him/her to the consulate.

New Form I 131A For Lawful Permanent Residents

September 30, 2016

New Form I 131A For Lawful Permanent Residents

Author: New York Immigration attorney Alena Shautsova

Form 131 is currently used by Immigration for a variety of different applications. For example, if somebody would like to apply for an advance parole, humanitarian parole, a refugee/asylee travel document, or a re-entry permit, they would have to submit their applications using I 131. Also, those who are seeking parole in place, also would have to use the same form.

For a while, there was a confusion when a permanent resident would go abroad and having spent there less than a year would find him/herself in a situation where his/her green card is missing: stolen, destroyed or lost.  Such a person would have to “work” with a US consulate oversees to obtain a boarding foil and pay fees for a new green card.

Now,USCIS issued a new form: I-131A. This form is to be used to apply for a travel document if they are returning from temporary overseas travel of less than one year and their green card has been lost, stolen, or destroyed, or are returning from temporary overseas travel of less than two years and their reentry permit has been lost, stolen, or destroyed. 

For convenience, the fees for the form (the current fee is $360) can be paid online. The form has to be filed with the nearest US consulate, and before making an appointment with a consulate, a person has to print a copy of the receipt for the paid fee.

Hopefully, the new procedure will simplify the process of obtaining a permission to return to the US for those LPRs who are not in possession of valid green cards or re-entry permits.  LPRs who are filing I 131A must submit appropriate evidence, including copies of documents confirming their identity and status. A passport style photo is also a must.

It is important to remember, that if a LPR stayed abroad for longer than a year, and does not possess a re-entry permit, he/she would have to seek a returning resident visa.

Those who are no longer in LPR or conditional resident status, may not use I 131A. For example, if a decision on a pending application was negative, and the person was overseas at this time, he/she will not be able to come back to the US using I-131A.

You may direct your questions to office@shautsova.com.

Immigration Rainbow: Good to Know!

September 5, 2016

Immigration Rainbow: Good to Know! Author: New York Employment Immigration attorney Alena Shautsova

It seems that New York managed to avoid the powerful hurricane Hermine. Quoting a famous singer “after a hurricane comes a rainbow”…  AILA or American Immigration Lawyers Association published a practice pointer that recommends to use…a  rainbow in dealing with USCIS Nebraska Service Center.

To wit, practitioners (a/k/a lawyers) when dealing with employment based RFEs and NOIDs (depending on the subject of the RFEs and NOIDS) should submit their (timely, always timely) responses using color stripes. For example: when one submits a response to an RFE in connection with regular processing of forms I 129 and I 140, they should use a RED stripe. If the processing was expedited, then they should use a BLUE stripe for I 140, and PURPLE for I 129 forms. If one responds to a NOID, then a GREEN stripe must be used. I guess, a usage of a wrong color may really get  one in trouble…

I must state that there is an ongoing problem with RFEs. And it is not just the latest demand of using  “a rainbow” to respond to them. The problem usually lies in that cases get denied for failure to respond to an RFE when a  person or his/her attorney never received one.  Another issue with RFEs that I have spotted (and I am sure I am not the  only one) is that they contain demands for information/documents that were already provided.

The problem here is that when I get requests like this, it makes me think: 1). maybe they lost the entire file??? or 2). it seems that USCIS is trying to “buy” itself a little more time before moving the case along. Whatever the reason is, the response to such an RFE must be submitted, or the entire case will be denied. I hope that the rainbow codes will help the process to be better organized.  But for some reason, I suspect it will cause even more confusion…

New Immigration Opportunities for Entrepreneurs

August 26, 2016

New Immigration Opportunities for Entrepreneurs 

Author: New York Business Immigration Attorney Alena Shautsova

Good news: new regulations are being implemented for entrepreneurs and owners of successful start-ups. USCIS announced plans to allow business owners to be paroled into the United States in connection with their business activities.  As always, the beneficiaries have to meet certain requirements and comply with certain restrictions.  One may find the text of the new proposed rules here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Articles/FR_2016-20663_793250_OFR.pdf.

First, the proposed rules will provide a parole, not a visa. A parole is a permission to come, stay and work, but it does not in itself give a right to apply for permanent residency or citizenship. The qualifying beneficiaries have to be owners with at least 15% interest share, and the start ups should be new enterprises (opened within the past 3 years), and the enterprises must be “ promising” in that they  can create a substantial revenue or jobs.

Second, as always, the amount of money that a business should hold is quite substantial:  $345K from qualifying U.S. investors (such as venture capital firms, angel investors, or start-up accelerators), or at least $100K coming from grants.

In addition, an enterprise has to demonstrate a potential for reliable growth, job creation and overall be in the U.S. national interests.

How would this work? Basically, a business person who actively participates in the development of the business  will be allowed to come and stay in the US on a parole to oversee the development of the startup. (In most instances it means that a company also will be able to sponsor the person for permanent residency).  Once the 2 years are over, the beneficiary may apply to be re-paroled for an additional 3 years.  (DHS proposes that an applicant would generally be expected to demonstrate that the entity received at least $500,000 in additional qualifying funding during the initial parole period. A). The proposed rule will allow the entrepreneur’s spouse and children to apply for employment authorization.

The new proposed parole program may open the door to many entrepreneurs by allowing them to come to the US easier and avoid L1A/B requirements. It also is different from current non-immigrant visa regulations as it eliminates the need of an investment treaty between the country of origin and the US.  It sets defined criteria for the amount of capital that the startup should attract to be considered successful.

 

 

Statute of Limitations For Green Cards Rescission

July 25, 2016

Statute of Limitations For Green Cards Rescission

Author: Green Card Attorney Alena Shautsova

In law, there is a statue of limitations or period during which one can bring a legal action with regard to almost all rights, regulations, incidents, accidents or actions. For example, if you happened to be in a car accident, you have 3 years to sue. If you became a victim of fraud, you have 6 years to sue your offender.

Now, believe it or not, there is  a statue of limitations as to how long the government can wait before taking your green card from you if it was issued in error. The bad news is that there is only one Circuit Federal Court in the whole United States which follows this five-year statute.

This Court is the Court for the 3rd Circuit, and it covers New Jersey! Only this Circuit court held that  the government cannot take someone’s green card away if the government issued it in error after five years passed since the issuance under 8 U.S.C. § 1256(a):

 

If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.

Interestingly enough, there is no time limitation on when the government may start deportation or removal proceedings against a person, so in reality, if the government really wants to take the green card or lawful permanent status away, it may “find” a valid basis for removal, and very often such a basis is determined to be fraud.

Moreover, if a person became a U.S. citizen, and the government still has time to rescind its decision regarding the person’s permanent resident status, the person would lose the citizenship as well.  In reality, however, just like with the rescinding or removal of a person in  permanent resident status, the government is not bound by the five-year statute and often, naturalized citizens of many years, and decades may lose their citizenship if a mistake is uncovered.

To rescind one’s LPR status, the government would:

1. Would send a notice with intent to rescind

2. A LPR has 30 days to contest the notice and then there will be a hearing with the Immigration Judge. The result of the hearing is appealable.

If a LPR does not respond to the notice within 30 days, he will not be afforded a hearing with  an Immigration judge. Important: a request for more time is not a request for hearing! See Ali v. Reno, 22 F 3d 44 (2n Cir. 1994).

3. The government has to prove their case by clear, convincing and unequivocal evidence.

If you  receive a notice of intent to rescind your LPR status, call an attorney right away. You can reach us at 917-885-2261.

 

 

 

 

EAD Clock and Transfer of Pending Asylum Case

July 12, 2016

EAD Clock and Transfer of Pending Asylum Case

Author: USA Asylum Attorney Alena Shautsova

Finally, there is a good news for asylum seekers. USCIS is adjusting its policy on stopping the employment authorization clock in case an applicant is filing his/her request to change the venue or transfer the case from one asylum office to another.

Previously, any request for transfer at any point of asylum case was considered by USCIS as a delay of the proceedings caused by the applicant and the EAD clock (the 180 day clock for employment authorization that starts to run once the case is filed) would be stopped, and often stopped permanently.

Recently, USCIS announced that in case of a transfer request the clock will be stopped only if the case had already been scheduled for an interview prior to the request. It is unclear, if the applicant should be aware of the scheduled date or not,  for the “punishment” to be imposed. However, the good news is that clock will be and should be restarted for all those cases were it was stopped in violation of this new policy.

The EAD clock is one of the most sensitive topic for asylum seekers. In many other countries, asylum seekers may enjoy different benefits while they are waiting for the resolution of their applications. The only benefit that they get in the US is a right to an employment authorization that  one can use after his/her case was pending for more than 180 days.

Sometimes, pro se applicants transfer their cases without knowing of the consequences of transfer. The new policy should help to eliminate this injustice and help those awaiting for their asylum cases to be resolved.

The other aspect of the issue is that the wait times for asylum interviews increased dramatically within the past few years. It is not uncommon for an asylum seeker to  wait for 2 years before he/she is called for an appointment with an Asylum officer. It means that if somebody moved within the first 6 months after filing the case, he lost his/her chance for an employment authorization for the whole time the case would be pending.  Hopefully, the new policy will help “movers” to avoid this consequences.

J1 Visa Options

June 21, 2016

J1 Visa Options

Author: US Visa Immigration attorney Alena Shautsova

J1 or foreign exchange visa program was first implemented in the US in 1961. Contrary to common belief that a J1 visa is used for “foreign kids” for “summer jobs”, the actual regulation provides 14 different categories of programs with variety of purposes and time limits. A visa applicant needs a DS2019 form in order to apply for the visa. The DS form itself is provided by Department of State to a “sponsor”.  Different categories determine the maximum length the J1 visa holder may remain in the US.  For example, “work and travel” J1 visas are typically issued for 4 months.  However, somebody who is a “trainee” and holds a J1 status can be admitted for 18 months. J1 visas are given without a specific date limitation, but rather for “duration of status.” This “D/S” designation is important because it helps to avoid unlawful presence bar if a J1 visa holder’s plans would change.

Some J1 visas come with a two year residency requirement, but not all of them. This condition depends on a J1 category.

These categories include:

Au pairs: students who live with a host family for 12 months and experience (1)U.S. culture while providing child care and taking courses at an accredited U.S. post-secondary institution.
(2) Camp counselors: Post-secondary students, youth workers, or teachers interact with and supervise youth at U.S. camps.

(3) College and university students: Foreign students enrolled in degree programs overseas study at American academic institutions or participate in an internship program facilitated by an academic institution.
(4) Government visitors: Influential and distinguished foreign nationals are selected by U.S. federal, state, or local government agencies to participate in observation tours, discussions, consultations, professional meetings, conferences, workshops, and travel in order to strengthen professional and personal ties between key foreign nationals and Americans and American institutions.
(5) Interns: College and university students or recent graduates gain exposure to U.S. culture by participating in an internship program in their specific academic fields.

(6) International visitors: Foreign leaders are selected by the Department of State to participate in programs designed to enable the international visitors to better understand American culture and society and enhance American knowledge of foreign cultures.
(7) Physicians: Foreign doctors participate in U.S. graduate medical education programs or training at accredited U.S. schools of medicine.
(8) Professors and research scholars: These two programs promote the exchange of ideas, research, and linkages between research and academic institutions in the U.S. and abroad.
(9) Secondary school students: Foreign high school students study at an accredited public or private high school and live with an American host family or at an accredited boarding school.
(10) Short-term scholars: Professors, scholars, and other accomplished individuals travel on a short-term visit to lecture, observe, consult, train, or demonstrate special skills at research and academic institutions, museums, and libraries across the U.S.
(11) Specialists: Experts in a field exchange ideas with their American counterparts.
(12) Summer work travel program: University and college students work and travel in the United States during the summer.
(13) Teachers: Foreign educators teach full-time at a primary or secondary school in K-12 classrooms in the US.
(14)  Trainees: Foreign professionals with a degree, professional certificate, or relevant work experience gain exposure to U.S. culture and receive training in U.S. business practices through a structured and guided work-based program.

Within recent years, the J1 program regulations and requirements became stricter, with a a greater control over the applicants’ placements and conditions of work or training. J1 status can be changed to a different non-immigrant status or immigrant status (if the 2 year requirement does not apply).

 

Online Inquiries for Employers Sponsoring Employees With I-129

June 4, 2016

Online Inquiries for Employers Sponsoring Employees With  I-129

Author: New York Employment Immigration Lawyer Alena Shautsova

As of April 21, 2016, USCIS has made it possible to submit inquiries regarding I-129 petitions in an effort to modernize its processing. Specifically, the new rule is applicable to those petitions that are requesting an extension of stay or change of employer.

The inquiries are only allowed to be made by petitions pending of 210 days or more as currently this is the “standard” processing time for I-129 extensions or change of employer. To give an example, if previously when you would like an update on your case, you would  have to wait 30 minutes  on the phone during normal business hours 9:00 AM – 5:00PM, and then an additional 30 minutes to speak with a representative before you give them the required information and convey to them what your question is.  Now, you may submit your inquires online.

The benefits while seemingly small can be huge if you are an employer with multiple petitions, saving at least 1 hour of time per  pending case.

With the heavy influx of recent petitions this online inquiry system is said to cut the processing times significantly. It is easier and faster to send out an email then to address someone via the telephone to explain the case status. With officers spending less time on the phones and more time reviewing the actual cases the results should not only be faster processing times but less increases in application fees over time ( we can only hope).

Other processes that have been “revamped” or added to the list, include the ability to correct typographical errors and even request accommodations for interviews.

While we believe the eligible for online inquires  categories will expand over time, many inquires still have to be made over the phone or in writing. In addition, it is impossible to submit any inquires for a pending administratively asylum case.