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.)

Wednesday, June 24, 2015

Nepal Designated for Temporary Protected Status for 18 Months


The Department of Homeland Security announced today its decision to designate Nepal for Temporary Protected Status (TPS) for 18 months on account of the magnitude 7.8 earthquake that struck Nepal on April 25, 2015. 

TPS is a special immigration benefit usually granted to countries where serious natural disasters have occurred or other severe country conditions exist. Foreign nationals granted TPS are also eligible for employment authorization and travel privileges.  

The TPS designation for Nepal begins on June 24, 2015, and will be in effect through December 24, 2016.  Eligible Nepalese residing in the United States may now apply for TPS with U.S. Citizenship and Immigration Services (USCIS).

To be eligible for TPS, applicants must submit evidence to establish that they nationals of Nepal or persons with no nationality who last habitually resided in Nepal.  They must also have continuously resided and physically present in the U.S. since June 24, 2015.  They must also undergo the regular security checks.

Please contact our office (www.1visa1.com)  if you or somebody you know would like to apply for TPS protection.  


Tuesday, June 16, 2015

USCIS Stops Electronic Forms I-539 and I-526

Starting June 15, 2015, Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-526, Immigrant Petition by Alien Entrepreneur, can no longer be filed electronically with USCIS. 

USCIS will continue to adjudicate all pending cases filed electronically to completion. Applicants will also have 30 days to complete and submit their draft cases.  

With some exceptions (e.g., change of status to H-1B), the I-539 form is typically used by non-immigrants, such as foreign students and temporary visitors, to extend or change their current immigration status.  The I-526 is for immigrant investors to apply for immigrant visas under the EB-5 employment creation program. 

Friday, June 12, 2015

Cancellation of Removal - Last Resort for Deportables


Foreign nationals who are deportable from the United States may still be able to stay if are eligible for some form of relief from removal. “Cancellation of removal” is one such relief application. It was created by Congress in 1996 to replace “suspension of deportation” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). 

The main purpose of cancellation of removal is to allow longtime residents of the U.S. with family ties and equities a way to remain here despite their transgressions.  It is a balancing test.  There are two main type of cancellation – one for legal residents and the other type for non-residents.

Cancellation of Removal for Non-Permanent Residents

Pursuant to INA §240A(b),  the Attorney General may cancel the removal of a non-permanent resident of the United States in any immigration status who-

1) Has continuously resided in the United States for at least ten (10) years; and
2) Has been a person of good moral character throughout this time; and
3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and
4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.

The application form for this type of cancellation of removal is the EOIR-42B.

A non-LPR’s continuous physical presence ends either when the foreign national is served with a Notice to Appear (“NTA”) or when he has committed an inadmissible offense under INA § 212(a)(2) [moral turpitude crimes], or a deportable offence under §§ 237(a)(2) [moral turpitude crimes] or 237(a)(4) [security violations]. INA § 240A(d)(1).

Further, an absence from the U.S. of more than 90 days, or multiple absences totaling more than 180 days breaks the non-LPR’s period of continuous physical presence. INA § 240A(d)(2). 

Because of the ten-year physical presence requirement, this form of cancellation is sometimes known as "ten-year green card" in some immigrant communities.  However, it is important to understand that one cannot affirmatively apply for Cancellation of Removal to obtain a green card.  The only way a foreigner may apply for cancellation is when he or she is placed in removal proceedings, and as a defensive tactic, the person may request for cancellation as a relief application from deportation. Some foreign nationals, because they believe they have a strong cancellation application, actually request the Department of Homeland Security (DHS) to put them in deportation proceedings, so that they may have an opportunity to present their cancellation claim.  However, DHS policy generally does not allow that.

Cancellation of Removal for LPRs

Some people mistakenly think that once they are granted a U.S. green card, they will be allowed to stay forever.  However, even lawful permanent residents may be put in removal proceedings as a result of criminal convictions or other violations that render them deportable from the United States.

Pursuant to INA §240A(a), the Attorney General may cancel removal of  any LPR who
1) Has been an LPR for not less than five (5) years; 
2) Has resided in the United States for not less than seven (7) years in any status; and
3) Has not been convicted of an aggravated felony.

Under the "stop-time" rule of Sec. 240A(d), once a LPR is served with a Notice to Appear (formal charging document) or when he/she has committed an offense that makes them deportable and/or inadmissible, the accrual of the seven years of residence stops automatically. Note, the LPR’s permanent residence status is not tolled by either of these two events.

LPRs may use Form EOIR-42A to apply for cancellation of removal.

A Balancing Act

As mentioned above, the purpose of cancellation is to provide an opportunity for longtime U.S. resident to remain here despite their transgressions.  An application for cancellation is usually filed with an immigration judge, who must consider all the facts and circumstances of the case and make a decision.  Equities such as family ties, community ties, rehabilitation, employment history, health of the applicant and his family members, value to society, volunteer services, tax records, property in the U.S. etc., must be weighed against the negative factors such as the seriousness of the offense, number of violations, reasons for the violations, driving records, and any other unfavorable items. 

For non-LPR cancellation, applicant must also establish that their close members will suffer “exceptional and extremely unusual” hardship. This is a significantly more restrictive standard than the old “extreme hardship” standard in the previous suspension of deportation cases.

The BIA has held that the hardship suffered must be something “substantially beyond” the hardships ordinarily associated with a person's ordered departure from the United States. See Matter of Monreal, 23 I. & N. Dec. 56 (2001).  However, the Board also held that the new hardship standard should not be construed so restrictively that only a handful of applicants will ever qualify for relief. See Matter of Recinas, 23 I. & N. Dec. 467 (BIA 2002).

What is clear is that cancellation is an extraordinary relief and the last resort for a non-citizen who has committed removable offenses.  If removal is cancelled, the applicant will be granted a green card and allowed to stay in the U.S. legally.   Careful preparation and proper legal representation are required for anybody who is applying for cancellation of removal. 

Wednesday, June 10, 2015

July 2015 Visa Bulletin: Philippines EB-3/OW Unavailable, EB-2 India Unchanged; EB-2 China Advances


The July Visa Bulletin is generally one of advancement. Most Family categories advance by about one (1) month.  On the Employment side,  EB-2 India remains unchanged; EB-3 India advances slight by one (1) week.  EB-2 China moves forward by four (4) months to October 1, 2013.  EB-5 China advances four (4) months to 09/01/2013.   Philippines EB-3 and Other Workers have become "unavailable" regardless of priority dates.  There might be unused visa numbers from Philippines EB-2 in September's bulletin for EB-3 and Other Workers categories.  Otherwise, they must wait for October 1, when next fiscal year's visa numbers become available.


FAMILY
Other Countries
China
India
Mexico
Philippines
F1
10/01/07
10/01/07
10/01/07
11/15/94
03/15/00
F2A
11/08/13
11/08/13
11/08/13
09/15/13
11/08/13
F2B
10/15/08
10/15/08
10/15/08
04/08/95
05/15/04
F3
03/15/04
03/15/04
03/15/04
04/22/94
08/22/93
F4
10/22/02
10/22/02
10/22/02
03/01/97
12/08/91

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)

EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
10/01/13
10/01/08
C
C
EB3
04/01/15
09/01/11
02/01/04
04/01/15
U
Other Workers
04/01/15
01/01/06
02/01/04
04/01/15
U
EB4
C
C
C
C
C
EB5
C
09/01/13
C
C
C

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)

Tuesday, June 9, 2015

PERM Processing time as of 05/04/2015

DOL posted the following PERM labor certification processing times as of 05/04/2015-



Analyst Reviews: 
November 2014  
(About 5-6 months)
Audit Review: 
November 2013 
(About 19 months)
Reconsideration Requests: 
May 2015 
(almost current)
Government Error Reconsideration:
Current


(Note: the dates represent initial filing dates)

Sunday, May 31, 2015

A "Wave-Through" is Legal Admission for Cancellation of Removal

A person "waved through" the U.S. border by an immigration officer constitutes an "admission in any status" for the purpose of applying for cancellation of removal, according to the Fifth Circuit Court of Appeals' holding in Tula-Rubio v. Lynch

Cancellation of removal is a form of immigration relief available to individuals who have been placed in removal proceedings by the Department of Homeland Security (DHS). Even legal residents of the U.S. may be placed in removal proceedings due to certain criminal convictions, security violatoins, or other serious immigration violations.   The requirements for lawful permanent residents (LPRs) are different from those of non-LPRs.  In both cases, a grant of cancellation means that the applicant may remain in the U.S. as legal residents. 

Pursuant to §240A(a) of the Immigration and Nationality Act (INA), cancellation is available for any LPR who
1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
2) has resided in the United States continuously for 7 years after having been admitted in any status, and
3) has not been convicted of any aggravated felony.

Once a LPR commits a deportable offense or is served with a Notice to Appear (formally charging him/her with grounds of removal), the "stop-time" rule at Sec. 240A(d) would stop the person from accruing the required seven years residence.

The LPR in Tula-Rubio v. Lynch was in a passenger in a car that was waved through to enter the U.S. by an immigration officer.  The Board of Immigration Appeals (BIA) held that such an entry is not an "admission in any status” for cancellation of removal, since Tula-Rubio was not in any legal status when he was waved through. The Fifth Circuit Court disagreed.

The Court reasoned that even though there is no clear definition of the phrase “admitted in any status” in the INA, the word “admitted” is explained as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer" under the Immigration Act, which is exactly what happened to the LPR in Tula-Rubio.

Further, the Court held that the phrase “any status” does not impose additional requirements to the admission requirement. "Any status” means "all states and conditions", including somebody without any legal status.  Therefore the specific immigration status of the person being admitted is irrelevant. Consequently, Tula-Rubio’s wave-through admission satisfies this requirement, making him eligible for cancellation of removal relief under §240A(a) of the INA. 

Thursday, May 28, 2015

H-4 Spouses May File for EAD After District Court Denied Injunction

USCIS began to accept applications for Employment Authorization Document (EAD) by eligible H-4 spouses of H-1B employees on May 26, 2015.  The original proposed rule-making was published in May 2014, but it was not finalized until the executive actions announced by President Obama on November 2014.  

A lawsuit filed by a group of  former technology workers at Southern California Edison attempted to block the implementation of the H-4 EAD program. The new rule went into effect as scheduled after District Court Judge Chutkan in Washington, DC, denied the plaintiffs' request for a preliminary injunction in SAVE JOBS USA vs. DHS.  These former technology workers alleged that they will suffer irreparable harm if EADs are issued to the H-4 spouses.  Judge Chutkan reasoned that the allegations are speculative as there is no evidence at this stage to indicate that the H-4 spouses will ever apply for IT jobs or apply for jobs at the former employer of the plaintiffs in California.  Hence, preliminary injunction was denied.  

Even so, it is still wise for eligible H-4 spouses to apply for EADs as soon as possible.  Litigation is still ongoing and the outcome is unpredictable.  It is important to submit legally sufficient applications to avoid delay or denial.  Documents regarding the status of the H-1B/H-4 couple, identification documents, photos, proof of I-140 approval or AC-21 eligibility, etc., are required. Any questions can be directed to our office.   

Visa Bulletin Predictions by Charles Oppenheim

On May 14, 2015, Charles Oppenheim of the State Department's Visa Control and Reporting Division provided the following guidance and projections about the future movement of the Visa Bulletin through AILA DOS Liaison Committee: 

1) Worldwide EB-2:  The State Department was surprised by the explosive visa demands in Worldwide (Other Countries) EB-2 - 80% increase from February to March, and 100% increase from February to April. Charlie is not sure if this trend will continue, but expects this category to remain current.

2) EB-2 India:  Although EB-2 Other Countries will remain current, EB-2 India will likely suffer because there will be less spill-over visa numbers from the former.  In fact, the expected advancement of EB-2 India to July or August 2009 by the end of the fiscal year may not materialize as a result of this unexpected visa demand in Worldwide EB-2.

Charlie also explained, in response to an AILA member's question, that the need for new medical exam reports caused delay in processing adjustment applications last year.  As a result, Charlie released visa numbers earlier in FY2015 by advancing the cut-off date more rapidly in an attempt to facilitate USCIS processing of the pending I-485 applications before the expiration of the medical exam reports. However, such an action also prompted a large number of upgrades from EB-3 India this year.  If this increase is only something temporary, EB-2 India may see better cut-off dates towards the end of the year.  

3) EB-2 and EB-3 China:  For the past few months, the State Department has advanced China EB-2's cut-off date by almost three years to spur visa demand.  Charlie, however, is concerned about whether the current cases can be processed by the end of the fiscal year. One of the reasons for the EB-2 advancement is due to the "downgrades" from EB-2 to EB-3 last year.   Since Charlie has no information on the number of upgrades or downgrades, he will continue to monitor these two categories closely.

4) EB-5 China:  The cut-off date remains unchanged at May 1, 2013 for June. Charlie has no additional predictions for EB-5 China at this time.

5) Philippines EB-3 and "Other Worker" Categories:  According to Charlie, heavy demand in these categories continues and further retrogression may be necessary before the end of the fiscal year.

6) Mexico FB-4:  Charlie retrogressed this category to March 1, 1997 due to the existence of a large number of applicants with current priority dates who were "documentarily qualified" for immigration.

7) Worldwide FB-2A: Charlie expects movement in this category will slow down during the final quarter of the fiscal year. 

Tuesday, May 26, 2015

DAPA delay continues after Appellate Court denied Obama Administration's request to lift injunction

The 5th Circuit Court of Appeals rejected the U.S. Government's request for a stay of an injunction
imposed on it's Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).  The DAPA program was announced by President Obama in last November to allow certain undocumented residents of the United States to temporarily stay and work legally for two years if they are parents of U.S. lawful residents or citizens. However, in response to a lawsuit filed by twenty-six (26) states challenging the program, a Federal District Court judge in Texas issued an Order of Temporary Injunction against the execution of the DAPA program on February 16, 2015.  The Obama Administration appealed this injunction to the 5th Circuit.  Today, the 5th Circuit U.S. Court of Appeals voted, 2-1, to deny a emergency stay of the injunction.  As such, the future of the DAPA program remains uncertain.

Friday, May 22, 2015

Guidance on H-1B Amendment based on Work Location Changes after Simeio

USCIS issued further guidance regarding H-1B employers' obligations to file amended petitions after a change of worksite location.  

Summary of the Guidance: 
  • An Amended Petition must be filed if there is a change in work location outside of the metropolitan statistical area (MSA) or an "area of intended employment" covered by the original H-1B petition and LCA.
  • Moves within the original MSA, short-term placements, non-worksite locations (training, seminar, peripatetic employment, etc.)  do NOT require an amendment.
  • Employers have a 90-day window (05/21/15-08/19/2015) to file any required amended H-1B petitions for job location changes that took place before or at the time Matter of Simeio Solutions, LLC was decided.
  • An employee may return to his previous approved worksite location if he/she has maintain legal status and the original petition is still valid.
  • Failure to comply with these requirements will result in adverse findings including denial of petitions and employees' failure to maintain lawful nonimmigrant status.


====================================================================


The following is the USCIS guidance: 

On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:
  1. When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
  2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. H-1B petitioners should follow the guidance below.

When You Must File an Amended Petition

You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

When You Do NOT Need to File an Amended Petition
  • A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
  • Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
  • Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
    • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
    • The H-1B employees spend little time at any one location; or
    • The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.
Filing Amended H-1B Petitions
  • If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.
  • If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees by August 19, 2015.
  • If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
  • If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
  • If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. 
To the extent possible, you should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

Tuesday, May 19, 2015

H-1B Extension Premium Services Suspended till July 27, 2015

USCIS just announced that all H-1B extension Premium Processing Services will be suspended as of May 26, 2015:

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.  USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

Employers who wish to use premium services must file their extension petitions within five (5) days!

Monday, May 18, 2015

June 2015 Visa Bulletin: EB-2 India and China Advance; EB-3 Philippines Retrogresses

In the June 2015 Visa Bulletin, there are major movements in the employment categories.  On the positive side, the employment-based, second preference (EB2) category for India and China continues to advance significantly - EB-2 India by 5 1/2 months and EB-2 China by 12 months. However, the State Department had warned that EB-2 India's forward movement may slow down or even stop in the summer. 

On the other hand, EB-3 Philippines move back by 2 1/2 years to January 1, 2005 after last months' 7-year retrogression.  Recent heavy visa demands in this category requires drastic adjustment of the cutoff date to control visa usage. Filipino applicants with current priority dates should submit their I-485 adjustment applications before June 1, 2015.  

EB-5 China continues to have a cutoff date of May 1, 2013.

There are some moderate forward movements in the family visa categories.  Please see below for details.

FAMILY
Other Countries
China
India
Mexico
Philippines
F1
09/01/07
09/01/07
09/01/07
11/15/94
03/01/00
F2A
10/01/13
10/01/13
10/01/13
08/08/13
10/01/13
F2B
09/15/08
09/15/08
09/15/08
04/08/95
05/01/04
F3
02/22/04
02/22/04
02/22/04
04/15/94
08/15/93
F4
09/08/02
09/08/02
09/08/02
03/01/97
11/08/91

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)

EMPLOYMENT
Other Countries
China
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
06/01/13
10/01/08
C
C
EB3
02/15/15
09/01/11
01/22/04
02/15/15
01/01/05
Other Workers
02/15/15
01/01/06
01/22/04
02/15/15
01/01/05
EB4
C
C
C
C
C
EB5
C
05/01/13
C
C
C

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)

Wednesday, May 13, 2015

Nuclear Family Relationship can be a Basis for Asylum

What can a mother do if she was threatened at gunpoint to have her son join the gangs? Well, she may be eligible to apply for political asylum in the United States, according to a recent decision by the U.S. Court of Appeals for the Fourth Circuit in Hernandez-Avalos v. Loretta E Lynch, Attorney General (No. 14-1331 4th Cir. 4.2015). 

One of the basis for applying for asylum in the U.S. is that an applicant is unable or unwilling to return to her country of origin because of persecution or a well-founded fear or persecution on account of her "membership in a particular social group." Immigration and Nationality Act (INA) Section 101(a)(42).  The courts have held that a family unit may constitute a social group.  The issue in Hernandez is whether the applicant mother's nuclear family relationship to her son is a central reason for the gangs targeting her for persecution.  

The case involved a public gang in El Salvador named Mara 18. Hernandez is a Salvadoran woman whose son was threatened to join the gang, after her husband's cousin was killed by one of the gang’s member.  Because Hernandez's strong opposition to his son joining Mara 18, she was threatened with death many times---the gang members even put a gun to her head once. After repeatedly asking help from the local police without any response, Hernandez was afraid of the gang’s retaliatory persecution and, in 2008, brought his son to the United States to seek protection.

The Fourth Circuit found that Hernandez had a well-founded fear of persecution and that the Salvadoran government could not control Mara 18's criminal activities or ensure her son's safety. Here, the court also examined whether Hernandez' nuclear family relationship to her son is "a central reason" for the gangs targeting her for persecution. The BIA concluded that the threats to kill Hernandez unless she allowed her son to join the gang were not made on account of Hernandez’s membership in her nuclear family. Rather, it was made because she did not give consent to her son's engaging in criminal activities. The Fourth Circuit believed that this reading by BIA of the statute is "an excessively narrow" one. Hernandez’s relationship to her son and her maternal authority to control her son were the reasons why she was targeted. In other words, Hernandez is her son’s mother is at least one central reason for her persecution.  The BIA’s conclusion was therefore unreasonable.

However, the court specifically limits the scope of the ruling to “nuclear family membership”. Not every threat that involves a family member is made on account of family ties. For example, a threat demanding Hernandez not to identify the murderers of her husband’s cousin was not made on account of Hernandez’s familial connections because that same threat could have been directed at any person who knew about the gang members’ criminal activities. By contrast, the threats that directed Hernandez to turn her son over to the gang would not have been made if there had not been a familial connection.

Thursday, May 7, 2015

E-2 Treaty Investors Visa

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain qualified employees of the business may also be eligible for this classification. 

Basic Requirements for E-2 Visa
To qualify for an E-2 visa, an applicant must be a national of a treaty country. If the person will be employed and doing business on behalf of a company, the employing company must also be from the same treaty country.  The employing company must be at least 50 percent owned by persons with nationality from the treaty country. These owners must not be lawful permanent residents of the U.S. 

Other requirements include: 1) The investor must possess and control the investment capital; 2) The investment must be invested and subject to risks of loss; 2) The investment must also be "substantial" so that it is enough to ensure that the business will likely to take off successfully; 3) The investment must not be "marginal", meaning that it must generate revenues more than enough to support the livelihood of the investor and his/her family; 4) The investor must actively develop and direct the business  rather than actually doing employees' work.  

Advantages of the E-2 Visa 
The E-2 classification does not require a fixed amount of investment, unlike EB-5 visas.  E-2 admission is generally granted for 2 years, and extensions are possible.  Further the spouse and children (under 21 and unmarried) may also accompany the principal E visa holder to come to the U.S. regardless of their nationality.  So if the principal applicant is a Taiwan national, after his E-2 visa is granted, his Chinese-born wife and children may also enter the U.S. with him.  Further, E-2 spouses are allowed to obtain employment authorization to work legally in the U.S.  Currently, Indian and mainland Chinese nationals do not qualify for E-2 visas, but citizens of many other countries including Taiwan, Canada, England, Australia, etc., qualify for the E-2 visa.  India- and China-born investors who have acquired a qualified nationality (e.g., Canada) may also apply for the E-2 visa status.  

How to Apply for E-2 Classification
There are two ways to apply for E-2 visa classification.  Investors may apply for a E-2 visa at an overseas U.S. Embassy or Consulate Office.  If they are already in the United States, they may also apply for the E-2 classification by filing a request for a change of status with the USCIS.

Conclusion
For investors who are citizens of a qualified country, the E-2 visa is a great tool to invest and live in the United States without having to commit a large sum of capital upfront.

Tuesday, May 5, 2015

Immigration Relief Measures for Nepali Nationals


USCIS announced on May 5, 2015, that several immigration relief measures may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015.  These measures, upon request, include:
  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • A grant of re-parole;
  • Expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
  • Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).