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For this series, we bring you our top tips for filing a successful E-2 visa petition. The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities may include either the creation of a new business venture or purchase of a pre-existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business. The E-2 ‘investor visa’ is available to an applicant who invests a substantial amount of his own money into a U.S. business, which he can control and direct. Foreign nationals from treaty countries who have made a substantial investment in the United States may qualify for E-2 Treaty Investor status. There is no set minimum level of investment, which may qualify for E-2 status, however the lower the investment the less likely one is to qualify. Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. For the E-2 visa petition, the United States business entity serves as the petitioner of the visa petition, while the Beneficiary serves as the investor.

Tip #1 Ensure that your business entity has been properly set-up

If you do not know how to properly set-up your business entity, you should consult with and retain a licensed attorney to properly set-up the business entity for you. Proper set-up of a business entity, entails much more than filing the company’s Articles of Incorporation, Bylaws, and applying for a Federal Employment Identification Number (EIN) with the IRS. It is for this reason that many applicants are more comfortable retaining a licensed attorney for the E visa process. Our office handles this aspect of the application as part of the E visa preparation package.

Why is this important?

Proper set-up of the business entity ensures that the entity is a bona fide business enterprise that is real, active, and producing goods or services for profit. Improper set up may cause the denial of a petition and increases the company’s liability.

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For this series, we bring you our top tips for filing the perfect family-based adjustment of status application (I-130/485), as well as valuable tips concerning common mistakes to avoid when filing the adjustment of status application, from our in-house family-based legal assistant, Ms. Reagan Volkman. Ms. Volkman has worked with hundreds of clients from all over the world helping them file their adjustment of status packages from beginning to end. With her hard work and dedication, our office has enjoyed an unprecedented approval rate for these petitions.

Tip #1 Ensure accuracy on every form associated with the I-130/485, especially in regards to questions relating to criminal history and/or immigration violations

  • Double check every form to ensure that you have completed each form as thoroughly and accurately as possible, making sure all dates and social security numbers are correct.

REMEMBER: Dates should be written in the (mm/dd/yyyy) format unless otherwise stated on each form;

  • If information is unavailable/not applicable, note such on each form;
  • Review all the yes and no questions listed on pages 3-5 of form I-485. Be very careful when answering these questions and thoroughly explain any “yes” answers. These questions relate to criminal history and immigration violations (such as fraud, willful representation, or removal from the United States);
  • It is strongly advised that you seek counsel from an accredited attorney if you have any criminal history and/or have committed any immigration violations, as these issues may require you to file a waiver before seeking adjustment of status, or make you inadmissible;
  • If you have served in the military in any foreign country and/or have military training you must answer “yes” and provide the relevant information requested. For countries that require military enlistment we recommend to note that the service was ‘mandatory’ in the description;
  • If you have held a J-1 visa in the past, and have been subject to the two-year foreign residence requirement, but did not obtain a waiver, you must answer “yes” and provide the relevant information requested;

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Beginning February 19, 2016 certain nonimmigrant Caribbean residents seeking admission to the United States as H-2A agricultural workers, will be required to obtain a valid passport and valid H-2B visa in order to be admitted. Spouses and children traveling with an H-2A agricultural worker will also be required to present a valid passport and H-2A visa. The H-2A nonimmigrant visa exception for Caribbean residents was first introduced during World War II in an effort to address labor shortages in the American workforce. The change, comes as part of the revised 2016 Omnibus Appropriations Bill, which eliminates the nonimmigrant visa exception for these individuals, along with other provisions that impact the H-2B nonagricultural visa program. The new rule will apply to nationals of the United Kingdom, France, the Netherlands and nationals of Barbados, Grenada, Jamaica, Trinidad and Tobago, who either maintain a residence in a territory governed by England, France, or the Netherlands located in the adjacent islands of the Caribbean, or maintain a residence in Barbados, Grenada, Jamaica, or Trinidad and Tobago. The change was validated in yesterday’s Federal Register by the Department of State and Homeland Security respectively. Removal of this visa exemption will allow the Department of State to properly screen individuals prior to their arrival in the United States, and further protect agricultural workers from employment violations and work related abuse. To learn more about the H-2A visa program click here.

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For this month’s staff spotlight, we invite you to learn more about Legal Assistant, Reagan Volkman.

Ms. Volkman was born and raised in San Diego, California. She pursued her studies at Cuyamaca and Grossmont College graduating in December 2014 with degrees in History, the German language, and Paralegal Studies. She is fluent in German and has knowledge of American Sign Language. At the office, she assists attorneys with drafting, compiling, and filing family-based immigration petitions including applications for adjustment of status, I-130 consular processing, removal of conditions, naturalization, fiance visas, change of status petitions, and much more.

“The best part of my job is meeting and working with such a diverse group of people. It is very rewarding to be able to make a difference in the lives of others.”

Prior to working for the Law Offices of Jacob J. Sapochnick, she worked with the Salvation Army Kroc Center as a figure skating instructor bringing with her, her valuable experience creating client relationships with individuals and families from diverse backgrounds. She is passionate about helping others, whether it be to get out of difficult situations or to achieve their goals. In her free time she enjoys spending time with her siblings, figure skating, hiking, baking, and watching Netflix.

Learn more about the dedicated staff members serving and supporting our clients here. To schedule a free consultation please contact us.

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On January 21, 2016 the Department of Homeland Security confirmed that the Visa Waiver Program Improvement and Terrorist Travel Prevention Act would begin to be implemented. As a result of the recent terrorist attacks in San Bernardino county and abroad, Congress passed the Act in an effort to protect Americans from potential attacks and to secure the border. The Act increases travel restrictions for certain nationals seeking admission to the United States via the Visa Waiver Program.

Presently, the Visa Waiver Program allows nationals from 38 designated countries to travel and seek admission to the United States without a visa, for a maximum duration of 90 days. Visa Waiver Program travelers must have an approved Electronic System for Travel Authorization (ESTA) before travel.

As of January 21, nationals of visa waiver participating countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 will no longer be eligible to travel or seek admission to the United States under the visa waiver program.  Nationals from visa waiver participating countries who maintain dual nationality with any of the aforementioned countries, are also excluded from traveling or seeking admission to the United States under the visa waiver program. Instead, these individuals must apply for a tourist visa at a United States Consulate or Embassy abroad before seeking admission to the United States. Part of this process will require a nonimmigrant interview to be conducted, before issuance of a tourist visa. DHS expects that this new legislation will not adversely impact visa waiver program travelers, since the Act does not ban these individuals from traveling to the United States, rather it removes the privilege of traveling under the visa waiver program, and requires these individuals to apply for a tourist visa.

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On January 23, 2016 a Federal District Court Judge for the District of Columbia granted the federal government an extension for the STEM Optional Practical Training (OPT) program to resume, giving the Department of Homeland Security (DHS) more time to issue a new replacement rule. The STEM OPT program had been in place since 2008, but was recently invalidated following a court order requesting the Department of Homeland Security (DHS) to issue a new replacement rule by February 12, 2016. DHS responded by requesting an additional 90 days to implement the final rule by May 10, 2016.

As part of their request, the federal government argued that exceptional circumstances existed to warrant the extension. This was owed to an unprecedented amount of comments received by DHS, that could not be reviewed and analyzed by the February deadline. According to the Administrative Procedures Act, DHS is required to publish a final rule 60 days before its effective date. During the comment period alone, DHS received over 50,000 comments that were nearly impossible to review and revise by the February deadline. Although plaintiffs for the original suit challenged the court stating that the court did not have jurisdiction to grant the extension, the court agreed with the federal government. The court stated that it did indeed have jurisdiction over the motion and that the undue hardship that STEM OPT participants and employers would experience, absent a new replacement rule, constituted an exceptional circumstance to warrant the extension. It is estimated that approximately 434,000 international students might benefit from the new replacement rule.

Presently, 23,000 students are STEM OPT participants, while approximately 2,300 more individuals are dependents of these participants. Had the extension been denied, thousands of students, their educational institutions, and their employers would be adversely affected. Litigation will continue over the validity and issuance of the replacement rule. If your initial OPT will expire between now and the May 10 deadline, and you are still within the 120-day filing window, you should apply for your 17-month extension as soon as possible, to benefit from the 17-month extension under the 2008 OPT rule. If your OPT will expire on or after May 11, and you are still within the 120-day filing window, you may be able to receive a 17-month extension. Once the new rule is in place and you are outside of the filing window, you will need to wait for the new rule and apply for benefits under the new rule. The new rule is expected to be published by March 11, 2016.

For more questions, please contact us.

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Beginning December 18, 2015, H-1B and L-1 filing fees will increase for H-1B/L-1 dependent employers, employing 50 or more employees, with more than 50% of those employees in H-1B or L nonimmigrant status. This increase in fees comes with the passage of the Consolidated Appropriations Act, 2016 recently signed into law by President Obama, to be enforced until September 30, 2025. The new fee will apply to initial and change of employment H-1B and L petitions filed on or after December 18, 2015. The additional fee will be $4,000 for H-1B petitions and $4,500 for L petitions. USCIS will be revising Form I-129 and I-129S to reflect the new law and the additional fee. Petitioner’s are advised to accurately complete Item Numbers 1d. and 1d1. of Section 1 of the H-1B Data Collection Supplement and Item Numbers 4a. and 4b. of the L Supplement. Failure to complete this information accurately and include the appropriate fee where necessary may result in the rejection of your petition beginning February 11, 2016. CIS reserves the right to issue a request for evidence to determine if the additional fee will apply. In these cases, the original filing date will be maintained as the date of receipt of the petition.

Other fees that may be included in the H-1B petition are as follows:

  • I-129 processing fee $325;
  • Fraud Prevention and Detection Fee $500;
  • American Competitiveness and Workforce Improvement Act of 1998 Fee $750 for H-1B petitioners with 25 or fewer employees or $1,500 for H-1B petitioners with more than 25 employees
  • I-907 premium processing service fee (optional) $1,225;

For a comprehensive list of H-1B and L visa filing fees click here. Please contact us for a free first consultation.

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This morning, the Supreme Court announced that it would hear arguments for and against the extended Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) program. If the government succeeds in its appeal, millions of undocumented immigrants will be granted temporary employment authorization, ‘deferred status’ meaning that these individuals will no longer need to fear deportation, and other benefits such as the ability to apply for a social security number. This decision is a victory for the Obama administration since it leaves open the possibility that the Supreme Court will lay down an important legal precedent in the midst of the presidential campaign and Obama’s exit from the White House.

  • To learn how expanded DACA is different than the initial DACA program click here.
  • To learn about the DAPA program click here.
  • To read about the temporary injunction blocking the President’s expanded DACA and DAPA program from being implemented click here.

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The Supreme Court justices are currently in deliberations, to decide the fate of Barack Obama’s expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) announced November 2014, as part of the President’s executive actions on immigration. At issue is whether or not the Court will hear arguments for and against lifting the temporary court injunction, which prevented the expanded DACA program and the new DAPA program from moving forward as initially anticipated.

The extended DACA and DAPA provisions were scheduled to go into effect on February 18, 2015, but were quickly blocked by a temporary injunction filed by Texas and 26 other states, just three days before applications for extended DACA and DAPA would have been accepted by USCIS. What has resulted has been a near two-year legal battle between the federal government and the states in question.

Timeline of legal action between the federal government and plaintiffs:

  • November 20, 2014 President Barack Obama addresses the nation, introducing the extended DACA program and new DAPA program as part of his executive actions on immigration. Applicants begin to prepare for their DACA/DAPA petitions to be accepted by USCIS beginning February 18, 2015;
  • February 15, 2015 a temporary injunction filed by Judge Hanen along with 26 states puts the extended DACA program and DAPA program on hold, 3 days prior to the enforcement of these programs;
  • March 12, 2015 The Department of Justice responds by filing an appeal defending extended DACA and DAPA and an emergency motion to stay with the 5th Circuit Court of Appeals, allowing the programs to continue as planned;
  • November 9, 2015 the Fifth Circuit Court of Appeals denies the federal government’s emergency motion to stay. The injunction continues in place until a decision is reached by the court;
  • July 6, 2016 Oral arguments on appeal expected to begin before the Fifth Circuit;

At this point two options remained for the federal government:

  1. to request what is known as an en banc hearing before all of the appeals court judges
  2. to file a writ of certiorari with the Supreme Court.

The federal government has decided to appeal to the Supreme Court. The Supreme Court is expected to decide whether it will hear the case by this week. If it does, the court will be taking a historic step in solving one of the biggest immigration dilemmas of all time. If accepted, oral arguments before the Supreme Court are expected to take place in the Spring, before the election of our new president. For more information please continue to check our blog.

mayaFor this month’s staff spotlight, we invite you to learn more about Paralegal, Maya Elkain.

Ms. Elkain began her journey with the Law Offices of Jacob J. Sapochnick in 2014 as an intern. She quickly learned the ins and outs of employment based immigration law and was offered a position. Today, she assists attorneys with the preparation of H-1B applications, E-2 investor visas, L-1A visas, O visas, National Interest waivers, provisional waivers of unlawful presence, and much more. Ms. Elkain specializes in employment-based immigration and investor petitions. With her assistance, our law office has been able to receive affirmative decisions in numerous cases.

“The best part of my job is having the opportunity to make a difference and actually help our clients succeed in their immigration process. It is the most rewarding feeling.”

Prior to working for the Law Offices of Jacob J. Sapcohnick, Ms. Elkain obtained her LL.M. degree in Civil and Common Law from California Western Western School of Law in San Diego, California. She also holds a foreign law degree from France. Aside from her experience in immigration, Ms. Elkain had the opportunity to work for both the public and private sectors in the United States and abroad. Her career took a different turn when she discovered her strong interest in U.S. Immigration Law. Ms. Elkain understands the everyday challenges immigrants face, as an immigrant herself. Each day in the office has been a fulfilling experience for Ms. Elkain. Her international background coupled with her knowledge of the French language and investment law, makes her an asset to our team.

Outside of work, Ms. Elkain enjoys outdoor activities, hiking, climbing, biking. She also loves yoga and cooking.

Learn more about the dedicated staff members serving and supporting our clients here. To schedule a free consultation please contact us