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Obama Immigration Legacy

January 19, 2017

Obama Immigration Legacy

Author: New York Immigration attorney Alena Shautsova

 

While everyone is talking about President-elect possible Immigration policy, I would like to recap on what President Obama did. Even though he was not successful on his promise of comprehensive Immigration reform, his administration did promulgate several executive and administrative actions that liberalized Immigration regulations of 1996, and  helped thousands to achieve their dream of living in America.

  1. DACA or Deferred Action for Childhood Arrivals

 

Implemented in 2012. It was created to help young undocumented residents to stay in the US and work legally. Many could receive an advance parole document that allowed them to travel and get back to the US to cure the entrance without inspection. Currently, still in effect. In 2014, DACA was to be expanded, but the opposition forces sued the government and the new plan together with proposed DAPA are still frozen.

 

  1. I 601A waiver and its expansion

 

I -601A Provisional waiver was implemented in 2013 and allowed those who entered the US without inspection or, let’s say using C1/D or K visas, to receive immigrant visas overseas and return back. The waiver “waived” the unlawful presence bar, and the best part about it: it is possible to file for it and wait for the result of the filing in the United States.

 

  1. New Rules about Work Visas

 

Under the President Obama administration, holders of the work visas and future holders, received good news: automatic extensions of employment authorization in case of re-filing; H4 employment authorizations under certain conditions; 2-year EAD cards for asylum seekers, improved portability rules for employment based immigrants.

 

  1. Parole program for entrepreneurs

 

A very new change: just came into effect parole for business people who will improve and contribute into the US economy. The program designed for start-ups and covers spouses and children of the qualified entrepreneurs.

 

  1. Clarification and expansion of military parole in place program

Parole in place policy was explained and expanded: immediate relatives of military and ex-military members received an opportunity to be “paroled” or allowed to “enter” the US legally without actually leaving the US.

 

  1. And of course, we cannot forget expansion of Federal Immigration benefits for the same-sex couples: one of the biggest and most fought for benefit.
  2. Parole for children of from certain South American countries whose parents are in the US legally; Parole for members of the families of Pilipino World War II veterans.

 

It is quite regretful that during its last days, the Obama administration decided to abolish Cuban parole (wet foot/dry foot) policy. Nevertheless, if to focus on positives, one should admit that in addition to new liberalized regulations, the function of the DHS became more transparent within the past 8 years. I hope that the incoming President will focus on finding reasonable solutions, rather than unreasonable conclusions.

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.

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.

 

 

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.

 

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY/COME TO THE US

May 10, 2016

MOTHER’S DAY: HOW TO HELP YOUR MOM TO STAY  OR COME TO THE US

Author: New York Immigration lawyer Alena Shautsova

A mother is the dearest, the dearest and the most loving person… I cannot describe and count how many inquiries I receive from children of all ages who would like their moms to live with them in the United States.

Let me help you a little bit in clarifying certain important points.

1. Only US citizens have a right to sponsor their  mothers.  Unfortunately, U.S. permanent residents or green card holders cannot sponsor their mothers (or fathers) into the US

2. To sponsor your mother (or father) you need to be 21 years old

3. To sponsor your mother (or father) you need to be able to execute an affidavit of support or find a joint sponsor

4. It is possible to sponsor a parent who came to the US using a visa or a parole, even if now their status had expired

5. A parent who entered the country illegally usually cannot get a green card without leaving the United States, unless he/she qualifies for Parole in Place, or 245(i) INA exception, or some other exception

6. A parent who came to the US via visa but did not state on application that the child was already in the Unites States, will need a waiver to get an Immigration benefit in the United States, including a green card

7. Finally, a parent who has been abused, may self-petition using form I-360

8. All petitions for parents (apart from self petitions) start with filing I-130 forms (and sometimes together with I-485 form, if applicable)

It will be necessary to prove that parent is the parent of the child. In most cases, it is easy by submitting a copy of the birth certificate. Sometimes, USCIS will demand a DNA test…

Finally, it is possible to sponsor a step-parent if the marriage of the parents occurred before child’s 18th birthday. A child who was adopted or received a SIJ status cannot sponsor his/parents if the adoption of SIJ became the basis for the child’s Immigration benefits in the US.

 

I hope these simple facts would help a little bit when you think about how you can help your mom. Remember: do your research and consult with an attorney. Many situations have solutions!

U.S. Immigration Fingerprints Abroad

April 25, 2016

U.S. Immigration Fingerprints  Abroad

Author: US Immigration attorney Alena Shautsova

Almost all immigration applications require that an applicant comply with the biometrics requirement and appear for a fingerprinting procedure in the US.  Previously, U.S. Immigration fingerprints were not collected abroad.

This is especially true for such important applications as Re-Entry Permit for lawful permanent residents , Advance Parole and Refugee/Asylee Travel documents. All these applications should be submitted to USCIS using form I-131. After the submission, according to the instructions, the approved documents (that look almost like passports) can be shipped overseas. For example, due to an urgent travel an applicant cannot remain in the US and have to leave before he/she receives the document. In such cases, USCIS can send the document either to the overseas consulate or a specified address abroad. What the instructions do not say is that prior to departure, the applicant must appear for fingerprinting appointment in the US. For years, there was no exception to this rule, and one would miss such an appointment and depart the US, would face significant difficulties coming back as there was no way for the applicant to comply with the biometrics procedure overseas.

Recently, USCIS allowed applicants to comply with the biometrics requirement outside the US. Biometrics collection for certain applications, such as a Form I-131, Application for Reentry Permit, may be taken at a USCIS office abroad, even if the collection was originally scheduled at an ASC office in the United States. This is available to residents of countries where USCIS has an international office. For example, Russia, Germany.

Only those can demonstrate urgent and severe circumstances will be allowed to comply with the procedure overseas. In addition, the applicant would have to demonstrate that he/she tried to expedite or reschedule the fingerprinting appointment.  It means that one who has I-131 pending and has to leave the country urgently, still has to show his/her attempts to comply with the regular procedure.

Examples of urgent circumstances may include: an urgent job assignment, a need to take care of a family member that requires urgency, etc.

The new procedure will help thousands who previously did not have a choice and had to either miss an important presence overseas or forego US immigration benefits or jeopardize their status to comply with U.S. Immigration fingerprints abroad.