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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.

New Standard for National Interest Waiver (NIW green card)

January 5, 2017

New Standard for National Interest Waiver (NIW green card)

Author: Employment Immigration Attorney Alena Shautsova

National interest waiver is an immigration tool that allows certain qualified individuals to sponsor themselves for a US green card without the need for an employer sponsorship and without labor certification. Subparagraph (A) of section 203(b)(2) of the Act makes immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.” Under subparagraph (A), immigrant visas are available to such individuals only if their “services in the sciences, arts, professions, or business are sought by an employer in the United States.” Under subparagraph (B) of section 203(b)(2), however, the Secretary of Homeland Security may waive the requirement of a “job offer” (namely, that the beneficiary’s services are sought by a U.S. employer) and, under the applicable regulations, of “a labor certification.” 8 C.F.R. § 204.5(k)(4)(ii).

In short, national interests waiver is just that: it is a confirmation issued by USCIS that an applicant’s  qualifications and proposed work in the US will be in the US’ interests. Over the years, the authorities developed “standards” on how to consider the applications in order to determine if a person meets the requirements. See section 203(b)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(B)(i) (2012). Until recently, the leading case  on point was Matter of New York State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).  The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national. Id.

Now, however, the standard was changed and became more relaxed, see Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).

This precedent decision means that USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

It the third part of the test that was significantly allowing many to obtain the waiver easier.

A typical applicant for a NIW would be a researcher, professor, or an  engineer. There is a special exception for physicians. (The USCIS has set forth the following seven factors which may be considered in defining national interest: Would one’s  employment (1) improve the U.S. economy, (2) improve the wages and working conditions of U.S. workers, (3) improve education and training programs for U.S. children and under-qualified workers, (4) improve health care, (5) provide more affordable housing for young and/or older poorer U.S. residents, (6) improve the environment and make more productive use of natural resources, or (7) did you come to the U.S. at the request of a U.S. Government agency?).

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.

 

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.

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.