A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, December 19, 2014

Visa Bulletin update by Charlie Oppenheim

Mr. Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, provided the following updates and insights about the visa bulletin and visa processing in general through American Immigration Lawyers Association.

Visa applicants should respond to the agent of choice letter and pay the visa fees promptly.
Many visa petitions are filed on behalf of applicants in overseas countries.  After these cases have been approved by the USCIS, they are sent to the National Visa Center for further processing.  The NVC normally would send out an "agent of choice" letter to the parties if they are not represented by a lawyer or other authorized representative.  Mr. Oppenheim observed that many visa beneficiaries do not respond to the agent of choice letter because they want to wait for their priority dates to become current first before paying the visa fees. However, such action may actually work against the interests of the applicants.  "When an applicant waits for the priority date to become current before paying the fee, an unanticipated surge in demand could result in the retrogression of the relevant category before the applicant had the opportunity to be interviewed and approved," according to Mr. Oppenheim.  Therefore, applicants should respond to the agent of choice letter as soon as possible, pay their visa fees, and submit all required documents to get the case ready for visa interview.  It will also allow NVC to provide more accurate statistics on visa demand and cutoff dates.

EB-5 China is expected to have a cut-off date in early 2015.
Mr. Oppenheim "is confident that a cut-off date will be established for EB-5 China and it is just a matter of when it will occur."  By constantly communicating with USCIS’s EB-5 office and Guangzhou, he hopes, by the beginning of February, that he will have enough information to determine when the cut-off is going happen.  The information will likely be published in the March 2015 Visa Bulletin.

EB-2/EB-3 China Priority Dates and EB-3 Downgrades.
The China EB-3 cut-off date has advanced rapidly to March 1, 2011 in January's Visa Bulletin, and advancement is expected to continue.  In fact, EB-3 China is now thirteen (13) months ahead of EB-2 China.  As a result, the Visa Office expects that Chinese applicants may once again attempt to "downgrade" their green card applications from EB-2 to EB-3 to take advantage of the later cut-off dates.  Mr. Oppenheim expects that such downgrades may eventually slow down the forward movement of China's EB-3 category.  The Visa Office will continue to monitor the situation.  It is very important that eligible EB-2 Chinese applicants start their downgrading or conversion to EB-3 as soon as possible.

President Obama's Executive Action plan should not have major impact on Priority Dates.
President's Executive Action plan allows for preregistration of adjustment of status applications for individuals whose priority dates are not yet current.  However, these administrative processing actions would not make them eligible for immediate visa numbers. Hence, there should not be any impact on priority dates.

EB-2 India Movements
Mr. Oppenheim observed that the EB-2 India cut-off date has remained unchanged at February 15, 2005 since November 2014.  It has been the Visa Office's practice to control movement in EB-2 India until summer time in order to more accurately capture the unused visa numbers from other visa categories.  However, the Visa Office is considering whether or not to begin advancing EB-2 India earlier this fiscal year.  According to Mr. Oppenheim, there is a trade-off of such an action.  By advancing EB-2 India earlier in the fiscal year, use of visa numbers will increase and, consequently, the normal advancement in cut-off date during the final quarter of the fiscal year will be reduced.

AILA InfoNet Doc. No. 14071401 (posted Dec. 16, 2014)

Wednesday, December 17, 2014

U.S. Travel to Cuba eased with full diplomatic relations

The Obama Administration's decision to normalize diplomatic relations with Cuba for the first time since 1961 means a lot of changes in financial transactions, trading activities, communications, etc. For those with family members in Cuba, perhaps the most important change of this switch in foreign policy is their ability to travel to Cuba.  Currently travel to Cuba may be authorized only by a general license or by a specific license (case-by-case basis decision).  Illegal travel to Cuba could result in hefty fines and other legal consequences.

The new policy will ease travel under general licenses for twelve (12) existing categories of travel to Cuba including:

  • Family visits
  • Official business of the U.S. government and foreign governments and certain intergovernmental organizations
  • Journalistic activity
  • Professional research and professional meetings
  • Educational activities
  • Religious activities
  • Public performances, clinics, workshops, athletic and other competitions, and exhibitions
  • Support for the Cuban people
  • Humanitarian projects
  • Activities of private foundations or research or educational institutes
  • Exportation, importation or transmission of information or information materials
  • Certain export transactions that may be considered for authorization under existing regulations and guidelines

Monday, December 15, 2014

January 2015 Visa Bulletin

The recently released first Visa Bulletin of 2015 continues with the trend of recent months. Employment Third categories continue to advance.

EB-3 advances seven (7) months to June 1, 2013 for Philippines, Mexico and Other Countries.

EB-3 China advances nine (9) months to Mar. 1, 2011, far exceeding EB-2 China, which only moves forward by one (1) month to Feb. 1, 2010.  Hence it is now again possible for qualified Chinese applicants to convert or downgrade from EB-2 to EB-3 in order to obtain their green cards faster.   EB-2 India remains unchanged.

Family immigration continues to advance steadily.  Family 2A moves forward by three (3) weeks to April 15, 2013 for China, India, Philippines and Other Countries. F-2B moves forward by about one (1) month to April 1, 2008 for China, India and Other Countries. F-4 also advances one (1) month for most countries.

Other Countries

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Other Countries
Other Workers

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)

PERM Labor Application Processing Time

U.S. Labor Department posted the following PERM processing times as of 12/02/2014-

Analyst Reviews: 
July 2014  (About 5 months)
Audit Review: 
May 2013 (About 19 months)
Reconsideration Requests: 
December 2014 (almost current)
Government Error Reconsideration:

(Note: the dates represent initial filing dates)

Monday, December 8, 2014

Challenges to the President's Immigration Reform Plan

President Obama's "immigration accountability executive action,” which includes a series of government acts to reform and change the nation's immigration system, has been challenged by the Republicans and conservatives as being too lenient, unilateral, or outright illegal.  They argue that these actions, especially the expansion of the current Deferred Action for Childhood Arrivals (DACA) program, and the new deferred action program for undocumented parents (DAPA), violate the U.S. Constitution and will encourage a new wave of illegal immigration to the United States.

Politically, the reaction of the Republicans and conservative members of the Congress is understandable.  They need to demonstrate to their constituents that they are doing something to respond the President's executive actions.  In fact, on December 4th, the House of Representatives passed a bill to block President Obama's executive actions.  This bill, however, is more symbolic in nature, as it will not likely be taken up by the Senate, which is still being controlled by Democrats. Further, the President can also exercise his veto power if the bill ever reaches his office.

Similarly, eighteen (18) states filed a lawsuit challenging President Obama’s immigration plan last week.  These states are mostly governed by Republicans.  They also argue that the President does not have the legal authority to take actions to change the immigration policy.  Further, these states argue that the new actions will result in substantial state spending in health care, education and law enforcement.

On the issue of legality, more than 100 law professors and scholars from the nation's law schools including Harvard and Yale have authored a joint letter on November 25, 2014, endorsing the President's DACA and DAPA plans as being within the legal authority of the executive branch of the government of the United States.  In fact, similar executive actions on immigration have been taken before by former U.S. Presidents including Presidents Reagan and George Bush Sr., both Republicans.  The U.S. Supreme Court has also recognized the executive branch's authority and need to exercise discretion in the enforcement of the immigration laws.  See Reno v. American-Arab Anti-Discrimination Committee,  525 U.S. 471 (1999); Arizona v. United States, 132 S. Ct. 2492 (2012). The President's deferred action plan is merely an exercise of his prosecutorial authority; it defers enforcement action for three years but does not grant any permanent legal status to the applicants.

The states' argument that they will have to spend substantial amount of additional social resources under Obama's immigration plan is far from clear cut.  Even under the current law, children are guaranteed a public education from kindergarten through 12th grade, regardless of their immigration status.  This right to education was upheld by the U.S. Supreme Court in the landmark case of Plyler v. Doe in 1982.  Further, certain health care services such as emergency room visits are already available to unauthorized immigrants.

On the issue of law enforcement, the new plan may actually bring about positive changes. The new plan will bring the illegal residents out of the shadow and register them in the system.  These changes will make it easier for police officers to enforce the law and create safer communities.  In fact, mayors from metropolitan cities with large immigrant population such as San Francisco, Los Angeles, Houston, New York, etc., all embrace the President's executive actions.  They believe the new plan will "strengthen [their]cities, keep families together, grow our economies and foster additional community trust in law enforcement and government."

In sum, challenges to President's immigration reform plan will likely continue.  But so far, they represent more like political rebuke than real threats to the plan. 

Wednesday, December 3, 2014

Domestic Violence Can Be Basis For Politcal Asylum

The Board of Immigration Appeals (BIA), the highest administrative immigration court in the United States, published a landmark decision on August 26, 2014.  The BIA found that women fleeing domestic violence can be members of a particular social group, one of the grounds for political asylum, and remanded a case involving a Guatemalan woman to the immigration court for a new decision. Matter of A-R-C-G-.  This ruling has the potential to affect immigrant women survivors of domestic violence from other countries too. The Board’s decision signals a move away from restrictive interpretations of the law that have made it difficult for domestic violence survivors to receive protection in the United States.

The case involves a mother of three, Ms. C-G-, who suffered what the decision deems “repugnant abuse” at the hands of her husband, including beatings, rapes, an assault that broke her nose, and an attack with paint thinner that left her with burn scars. Her efforts to get police protection were in vain, as they refused to interfere, and her husband threatened to kill her if she contacted them further. Her husband thwarted her repeated efforts to leave and stay with relatives; he would find her and threaten her if she did not return.

Before this pivotal decision, immigration judges routinely denied asylum to domestic violence victims because U.S. asylum law does not specifically protect victims of domestic violence. Historically, these types of claims would be denied on the basis that domestic violent acts were merely random criminal acts and not on account of the victim's gender. The U.S. asylum law only shields people who are persecuted because of their race, religion, nationality, political opinion, or membership of a particular social group.

To qualify to be a "particular social group" for asylum, the group must be (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. See, e.g., Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).  In Matter of A-R-C-G-, the Board recognizes that the victims of demestic violence do share immutable characteristics including their gender and marital status.  Further, the definition of the group is also defined unambiguously with particularity.  Finally, the Board also found that the social is socially distinct.  Social distinction is determined by the perception of the society in question, rather than by the perception of the persecutor.   There is ample evidence that Guatemala has a culture of  mascular family violence.  Consequently, the Board recognized married women in Guatemala who are victims of domestic violence and who are unable to leave their relationship as a unique social group—giving the Guatemalan woman standing to make an asylum claim.

The BIA specifically limits the scope of the ruling to "married women in Guatemala who are unable to leave their relationship."  Therefore, the ruling technically affects only Guatemalan women. However, the reasoning of the decision can be applied to asylum claims from other countries if the applicant can meet the requirements of the law. However, if a victim comes from a country where domestic violence is not as prevalent as in Guatemala, it may not be easy to establish a similar asylum claim. 

EB-5 Regional Center Eligibility Update: Form I-924A

USCIS reminds existing Regional Centers to file their annual update to demonstrate their continued eligibility for the EB-5 Program.  Specifically, all approved EB-5 regional centers with a designation letter dated on or before September 30, 2014 must file Form I-924A, Supplement to Form I-924, for fiscal year 2014 no later than Dec. 29, 2014.

USCIS will issue a notice of intent to terminate participation in the EB-5 Immigrant Investor Program if a regional center fails to timely file or files an incomplete Form I-924A.

Tuesday, December 2, 2014

Q&As on Pres.Obama's new executive immigration plan

President Obama on November 20, 2014, announced an executive plan to reform the current U.S. immigration system.  The following are some questions and answers regarding his plan:

Q: When will the new plan become effective?
A: President Obama's plan is composed of a number of executive actions addressing different aspects of the U.S. immigration policy.  Some will become effective soon while others will be addressed by new regulations and other agency actions.  For examples, the deferred action plan for undocumented parents of U.S. citizens and permanent residents will become effective with 180 days (on about May 18, 2015).  Expansion of deferred action plan for childhood arrival will become effective with 90 days (on about February 18, 2015).

Q: I am a parent of a U.S. citizen or green card holder.  How do I apply for the President's deferred action plan for undocumented parents?
A: The government has not yet announced the details of the application process.  Nobody should be able to help you submit the application right now.  However, you may gather documents and evidence to get ready to file for this benefit.

Q:  How do I get ready to file for President Obama's deferred action for parents?
A:  You can get ready by gathering documentary evidence to prove your identify (e.g., passport, driver's license, birth certificate), your relationship with your child (e.g., his/her birth certificate), your continuous physical presence in the U.S. for the past five years (e.g., rent receipts, employment documents, school documents, utility bills, insurance documents, etc.).  If you haven't file federal income tax returns, you should file them as soon as possible.  You should also consult with the qualified immigration attorney about your particular situation.

Q:  I have a criminal background.  Would that make me ineligible for deferred action?
A:  You should still consult with a qualified immigration attorney if you have a criminal record.

Q: My spouse is an H-1B employee.  Would I be able to obtain employment authorized document (EAD) soon?
A:  Part of President Obama's plan is to give employment authorization to spouses of H-1B workers in the U.S. A proposed regulation was published in May 2014 to issue EAD to H-4 spouses if they are already in the process of applying for lawful permanent status. The final regulation with more details will likely be implemented early next year.

Q: I already have an immigration court case pending. Would I still be qualified for the President's new plan?
A:  It depends on the status of your immigration case.  If you have been ordered deported from the United States or failed to appear in immigration court before, you may not be qualified for the benefits of the new plan.  You should consult with a qualified immigration attorney about your particular situation.

Q: Would I be able to obtain permanent resident status under President Obama's new plan?
A:  The deferred action plans proposed by President Obama provide a temporary protection of three years for qualified individuals from the danger of deportation.  The plan does not offer any direct way for the undocumented foreign nationals to apply for permanent resident status.

Q: If the President's new plan offers only temporary protection, should I wait for something more permanent before I apply?
A:  Although the President's  immigration reform plan only offers temporary protection, there are many advantages to apply. For examples, qualified individuals will be able to obtain government-issued ID document (EAD) to allow them to live and work in the U.S. legally for three (3) years;  and be able to apply for valid driver's licenses and state ID cards.  Most importantly, they will no longer have to live under the fear of deportation.  Extension of the period of protection is also possible, depending on the political situation. 

Thursday, November 20, 2014

President Obama's Executive Immigration Reform Plan - A Bullet Point Summary

Tonight, President Obama announced his executive plan to reform the current U.S. immigration
system.  Below is a summary of the most important points:

  • Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders: These parents can stay for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks and pay back taxes.  This rule should take effect in 180 days.
  • Expansion of Deferred Action for Childhood Arrivals (DACA):  This action will benefit more undocumented young people who were brought to the U.S. as a child (before the age of 16). The applicant must have been in the U.S. since January 1, 2010 (extended from June 15, 2007).  The present age of the applicant is no longer a criterion for consideration.  All other DACA requirements will remain in effect. These young people will also be allowed to stay and work in the U.S. for three (3) years. This rule will take effect in 90 days.  
  • Expansion of I-601A Provisional Waiver to include spouses and children of LPRs:  People who have been unlawfully present in the U.S. need a waiver before they may apply for permanent residence status.  Provisional waivers allow undocumented individuals to submit their waiver applications in the U.S. before they apply for a visa to return.  Currently only immediate relatives of U.S. citizens may apply for provisional waivers.  Under the new rule, spouses and children of green card holders will also be eligible for provisional waivers.
  • Foreign Workers with Approved I-140 Petitions May File I-485 Adjustment Applications Earlier:  This is very good news for the 410,000 EB applicants who have been waiting for available visa numbers.  They will be allowed to apply for employment authorization documents (EADs) and travel documents with the I-485s.  Exactly how early they may submit their I-485s will be addressed by regulation. 
  • Foreign Entrepreneurs Will Get Parole Status:  Certain foreign investors will be allowed to enter or stay in the U.S. in "parole" status.  
  • Foreign Entrepreneurs, Researchers, Inventors, and Founders Eligible for National Interest Waivers  (NIW):  They will be allowed to bypass the labor certification process and apply for green cards directly. 
  • STEM OPT Will be Expanded:  The length of time for STEM OPT will be extended.  Subsequent non-STEM degrees are also being considered for eligibility. 
  • Optimal Use of Immigrant Visa Numbers:  The President will direct immigration-related agencies to look at modernizing the visa system, in an attempt to achieve optimal use of the numbers of visas.  For examples, whether dependents should be counted towards the visa quota and recapture of unused visa numbers will be considered.  
  • Prioritizing Enforcement Efforts:  The top three priorities will be: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. 
(Any questions regarding the President's new plan can be sent to info@szetolaw.com.)

Monday, November 17, 2014

Visa Bulletin Predictions by Charlie Oppenheim

Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, made the following predictions and projections regarding the upcoming Visa Bulletins pursuant to AILA's DOS Liaison Committee:

1) No major changes in his previous predictions until February and March of next year.  The current trends (including slow movement of India's EB-2 and Eb-3) will continue for a few more months.

2) EB-5 China Movements:  Monthly updates are forth coming on EB-5 China starting January 2015.

3) EB-3 China:  Advancement will continue but at a "slower pace" than early 2014.  Demand for visa numbers may increase due to downgrades to EB-3.  If that does not happen by December or January, advancement will be more rapid starting in February.

Sunday, November 16, 2014

Who is afraid of the National Visa Center?

The United States is a land of immigrants.  Although there are different ways to obtain the American green card, overseas applicants ultimately must go through a consulate interview process before they may travel to the U.S. as landing immigrants.  And before an intending immigrant's file is sent to an overseas American consulate for local processing and interview, it must first be cleared by the National Visa Center (NVC).  NVC processing can be challenging and laden with pitfalls, causing unnecessary delays if not handled properly.

What is the National Visa Center?
Created in 1994, the National Visa Center (NVC) is a branch agency under the U.S. Department of State. It's main function is to pre-process all immigrant visa petitions for final consular processing. After U.S. Citizenship and Immigration Services (USCIS) approves an immigrant visa petition, it sends the petition to NVC for immigrant visa pre-processing. Immediate relative categories (U.S. citizens' immediate relatives) do not have yearly numerical visa limits and, therefore, their cases are processed as soon as administratively possible. Other categories of cases have numerical limits each year, and will be processed only if visa numbers are already available or visa numbers will likely be available soon.  

My case has been sent to NVC - now what?
As mentioned, NVC will only start processing a case if it estimates that visa numbers will be available soon.  Therefore, it is possible that you may not hear from NVC for months or even years. It is extremely important that you keep the NVC and your attorney updated of any changes in your address and other personal information.  When a case is ready to proceed, NVC processing involves several major steps: (1) Invoicing and payment of  the visa application fees; (2) Processing of visa applications and supporting documentation (civil documents and affidavit of support); and (3) Holding the visa petition until an interview can be scheduled with a consular officer at a U.S. Embassy or Consulate.

It is very important that the visa fees and affidavit of support fees are paid correctly and promptly. Without correct payment, NVC will not proceed with the case.  If electronic payment is made, be sure to return to the payment website after several days to print out the payment receipts.  Each visa applicant must pay for his or her visa fee but only one affidavit of support fee is needed for each family.

Visa Application  DS-260
After an applicant paid the visa fees, the next step is to submit a visa application to NVC electronically.  In an effort to transition to more paperless processing, NVC mandated the use of  the DS-260 Immigrant Visa Electronic Application on September 1, 2013, replacing the old paper-based DS-230 Application for Immigrant Visa and Alien Registration (parts I and II).  The DS-260 form requests for more detailed personal information from the applicant and also contains more security-related questions.  Applicants should review and verify all answers very carefully before submitting the form to NVC.  Once submitted, there is no easy way to make changes.

Civil Documents
Civil documents are required by NVC for each immigrant petition, including birth certificates, marriage certificates, divorce judgments, police clearances, criminal record documents, passports, etc.   For many years, originals or certified originals of civil documents are required by the NVC. This policy changed as of November 12, 2014.  NVC now on longer requires or accepts original documents from visa applicants.   Instead, applicants will have to bring with them the originals to the U.S. consulate office during the visa interview.  If a document, e.g., a birth certificate, is not available, an applicant may use secondary evidence to meet the legal requirements.  However, a qualified immigration attorney should be consulted in such situations.

Affidavit of Support (Form I-864)
Many immigrants find the I-864 Affidavit of Support form one of the most confusing forms out there. Their feelings are well justified - many visa petitions are delayed because of mistakes and problems relating to the I-864 form.  Although there are thirteen (13) pages of instructions to the I-864 form, completing the form correctly according to the NVC requirements still proves to be a daunting task for most people.  Part of the confusion may be attributed to the different languages used in the immigration field and in the tax field.  Not only must the petitioners complete the forms correctly, they must also produce all required supporting documents such as tax returns, proof of employment, etc., to NVC.  Things become even more complex for petitioners who need to rely on joint sponsor income or personal assets to meet the financial support requirements.

The "Checklist" letters
Any meaningful discussion of NVC must include its famous checklist letters.  The NVC uses checklist letters to inform the parties about various issues of the case - missing documents, wrong documents, forms incorrectly completed, etc. The checklist letter is similar in nature to the Request for Evidence (RFE) letter issued by the USCIS.  Because of the checklist letter is based on pre-defined format, its content can sometimes be confusing.  Thus far, NVC has not imposed any deadlines for checklist responses, although cases not responded to within one year will be considered abandoned.  Sometimes, NVC may use multiple checklist letters to get the case ready for consular processing, resulting in substantial delay.  

NVC processing is an important phase of the U.S. immigration process for overseas applicants.  It is also a rather complicated process with many legal and documentary requirements.  Intending immigrants and their sponsors should handle the process carefully.  Whenever in doubt, one should seek legal advice from a qualified immigration attorney to avoid problems and unnecessary delays.

How to apply for a U.S. green card?

The immigration laws in the U.S. are extremely complicated.  Many intending immigrants do not understand how they can apply for legal status in the U.S.  The following is a summary of seven major ways that one may apply for a U.S. green card:

1. Petition by Close Family Members
If you have a parent, spouse, child, brother, or sister who are U.S. citizens, then you may be eligible to apply for a green card through them. Certain lawful permanent residents may also apply for their relatives. Each relative category has its own sets of rules.   Waiting times vary considerably according to the closeness of the relationship, the immigration status of your relative, your marital status and your country of birth. For example, if you are married to a U.S. citizen, you may obtain a green card in nine months (or less if you are in the United States). However, if you are petitioned by your brother who is a U.S. citizen, it may take over ten years for you to obtain permanent residence, even longer if you were born in a country with a large backlog such as China, India, or the Philippines. 

2. Petition by an Employer
A U.S. employer who cannot find a suitable and available U.S. worker to fill a job opening may petition for a qualified foreign worker for the opening.   In fact, this is the most common way for F-1 students and H-1B workers to obtain permanent resident status.  Normally, a labor certification needs to be approved before the employer may petition for a green card for the employee.  Certain employment-based immigrant categories are exempt from the labor certification requirement (E.g., extraordinary ability and national interest waiver applicants)

3. Extraordinary Ability / Exceptional Foreign Nationals and  Special Categories
For those people who possess superior education, extraordinary or exceptional ability, or work at multinational companies, they can apply for a green card directly without first obtaining a labor certification, and sometimes even without a job offer.  For some foreigners whose immigration is considered in the national interest of the United States, they may also apply for a green card on their own by requesting for a "national interest waiver".  Eligible religious worker such as priests, nuns, and missionaries may also apply for a green card based on their need to work.

4. Visa Lottery (Diversity Visa)
Every year, approximately 50,000 immigrant visas are available for nationals of countries which have not sent a large number of immigrants to the U.S. during the preceding five years.  The odds are doubled if both your and your spouse apply at the same time.   

5.  Investor / Investment Visas
For those individuals who are able and willing to invest a substantial amount of capital in the U.S., they may also be eligible to apply for an immigrant visa based on the EB-5 visa category.  Their investment and business must meet very vigorous requirements and create at least 10 jobs in the U.S. 

6. Political Asylum
Foreign nationals who have suffered persecution in the past or who fear persecution in the future may be eligible to apply for lawful permanent resident status by applying for political asylum.   The alleged persecution must be based on race, religion, political opinion, nationality, or membership in a particular social group.  

7. Extraordinary Relief
Finally, if you are in removal, deportation, or exclusion proceedings, you may also apply for permanent residence through suspension of deportation or cancellation of removal. These are extraordinary forms of relief granted only to the most deserving applicants only.

Thursday, November 13, 2014

National Visa Center (NVC) no longer requires original civil documents

As of 11/12/2014, the National Visa Center (NVC) will no longer accept original civil documents in support of immigrant visa (IV) applications, according to a recent State Department communication.

Under this new policy, applicants will only be required to submit photocopies of supporting civil documents such as birth certificates, divorce judgements, marriage certificates, and police clearances, etc., to NVC.  Visa applicants will be instructed to take their original documents to their interviews for consulate review.

However, applicants must still submit application forms such as Form I-864, Affidavit of Support, with original signatures.

This change in policy makes good sense as it will facilitate electronic processing of documents and eliminate any risks of loss of original documents.

Sunday, November 9, 2014

Poverty Guidelines for 2014 for Affidavit of Support of Immigrants

Every year, the U.S. Department of Health and Human Services (HHS) publishes the poverty guidelines for the public. In all family-based immigrant visa petitions, the petitioner must promise under oath that the beneficiary- immigrant will not become a financial burden of the U.S. by completing a Form I-864, Affidavit of Support.  The only exception is if the beneficiary has already completed 40 quarters of work in the U.S.  The petitioner (also the financial sponsor) must demonstrate in Form I-864 an income of at least 125% (100 % for petitioners on active duty in the U.S. military who are sponsoring their spouses or children) of the current poverty level for the his household size, which must include the immigrants and their dependents. The 2014 guidelines are listed below:

Size of Household
48 Contiguous States,D.C.U.S. Virgin Islands,Guam & CNMI
125% of Poverty Line (U.S. dollars)

Add $5,075 for each additional person
Add $6,350 for each additional person
Add $5,837 for each additional person
For many applicants, the I-864 form turns out to be the most challenging document to handle.  In fact, a good number of immigrant petitions are delayed or denied due to the petitioner's failure to properly fill out the I-864 and related forms, or produce sufficient documents to prove financial ability.  If the petitioner cannot meet the I-864 requirements, another person may act as a joint sponsor and complete his or her own Affidavit of Support.  Both petitioner and the beneficiary may also use their assets such as real estate, stocks, bonds, cash, etc., to meet the I-864 requirements. 

EB-5 Program vs. L-1 Visa

Foreign investors who are interested in applying for U.S. green cards often ask this question - Should I apply for the EB-5 employment creation visa or the L-1 multinational executive and manager visa? The answer often depends on the individual circumstances and the facts of each particular case.  This article attempts to highlight the most important considerations.

EB-5 vs. L-1: The Basics
The EB-5 Program allows foreigners to apply for U.S. permanent resident status by investing $500,000 or $1,000,000 dollars in a U.S. enterprise and creating or preserving at least 10 full-time job openings.   The advantages are that applicants do not have to meet any educational or qualification requirements.  Further, the visa numbers are still abundant in general, although demand for EB-5 China visa numbers has been under pressure as of late.

The L-1 visa allows a multinational company to temporarily transfer foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer. The basic requirement is that the foreigner must have worked at a foreign company for at least one year as an executive, manager or specialized knowledge employee.  The advantages are that, unlike the EB-5 visa, no specific amount of capital investment is required for the L-1 visa.  There are no upper limits as to how many L-1 visas are issued each year. Further, L-1 visa holders may subsequently apply for U.S. green cards through the EB-1C visa category.

Under both EB-5 and L-1 visa programs, the dependents (spouses and minor children) may also live in the U.S. with the principal applicant.

Approval Rates
Many foreigners often ask about the "success rate" of these two visa program categories. However, there really is no simple answer to this question.  For instance, the approval rates of these applications vary each year, and one should not rely on the statistics of a particular year.   For example, according to the statistics released by USCIS, the denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011 for no apparent reasons.  Further, the approval rates also vary between different countries and industries. For instance, the approval rates of L-1B cases (specialized knowledge employee) have been declining in recent years for IT professionals.

Within the EB-5 category, the USCIS reported that the approval rate of the I-526 application (Immigrant Petition by Alien Entrepreneur) has increased from 53% in 2005 to 79% in 2012.  But it is important to note that many petitions are not adjudicated in the year that it was filed.  These numbers only take into account cases that have been decided by the agency during the particular fiscal quarter or year.  For example, USCIS reported an approval rate of 81% in 2011, when it receipted 3,805 I-526 petitions, approved 1,503 cases and denied 371 cases.  One thing is clear is that the approval rates of each visa category might change due to the agency's changes in internal policy and other administrative reasons. Hence, foreign investor should not rely on the statistics of one particular year as basis for their investment decisions.

Foreign Investor's Situation
Perhaps the more important consideration in choosing between the L-1 visa and the EB-5 visa is the investor's personal circumstances.  The personal investor must evaluate if she has met the basic requirements of either or both of these visa programs.  For example, if an investor has not been working as an executive or high-level managerial position in a foreign company for at least one year, then she will not be qualified for the L-1A visa.  Likewise, if an investor does not have at least US$500K to invest, then he should not consider the EB-5 program.

Some investors actually meet the basic requirements for both visa programs. In those situations, the investor should consider his personal preferences.  If a person prefers to run his own business and does not want to invest substantial amount of money, she probably should consider the L-1 visa. Unlike the EB-5 program, to qualify for an L-1 visa, the U.S. business does not have to employ at least 10 full time employees.

On the other hand, if money is not an issue and the investor has no problem letting other people invest his money, then he should consider an EB-5 Regional Center program.  An EB-5 Regional Center is a legal entity that is established to invest foreign investors' capital in certain pre-defined projects.  There are several hundred regional centers in existence.  Foreign investors must choose carefully which program to invest their capital.   It is important to note that an investor may also choose to invest a million dollars in his own business without using a regional center.  In this situation, the investor is free to choose any type of business to invest in and make his own business decisions.

Finally, investors must also consider the risks involved when choosing a visa program.  Generally speaking, all investment opportunities involve risks.  Since the L-1 visa requires less initial capital investment and usually allows the investor to "start small". So the risks of financial loss is somewhat limited. Further, to the extent that the L-1 visa holder generally makes his own business decisions, he should be able to control how much risks to take.  On the other hand, since the EB-5 program involves a large amount of capital investment, the risks involved are naturally greater.  Further, if one invests through a Regional Center program, all business decisions will be made by others without any guarantee of a return.   Hence, it is very important to carefully evaluate an investment program before making a decision.  Do not solely rely on the recommendation of intermediaries as these middle companies usually receive kickbacks or commissions from the investment programs.