Visa Lawyer Blog

Great tip from AILA about how alternate degree and experience requirements are stated on the ETA 9089 and how those requirements are interpreted in adjudicating I-140 EB-3 skilled worker petitions. Recently we have seen too many Requests for Evidence concerning this issue.

The situation arises most commonly where the stated minimum requirement for the position is a bachelor's degree, but the beneficiary obtained a 3-year bachelor's degree. In particular, where no alternative requirement is provided in H-8 on the ETA 9089, but degree equivalency language is included in H-14, Nebraska Service Center has stated that the information in H-14 appears to contradict the "no alternative requirements" indicated at H-8.

AILA advised NSC, as confirmed by BALCA, that information included in H-14 is intended clarify and not contradict information provided in the more limited checkbox format provided elsewhere in Section H. See, e.g., Matter of General Electric Co., 2011-PER-02696 (BALCA, Jan. 22, 2013);

Accordingly, the NSC, the TSC, and Service Center Operations (SCOPS) reaffirmed at the May 9, 2013 Business Representatives Engagement at the TSC that the policy is to review the entire ETA 9089 to determine the employer's intent as to the requirements for the position. So make sure to stay consistent on that form.

Immigration Lawyers commonly used Section H-14 to clarify alternate requirements due to the limited format of the ETA 9089. While it appears that NSC will continue to interpret information provided in H-14 as clarifying the job requirements, the NSC also suggested the following method for more clearly indicating job requirements where a bachelor's is required, but an alternative to a U.S. bachelor's degree or a foreign equivalent degree (e.g., a 3-year bachelor's degree) is acceptable:

In addition to checking "Bachelor's" in H-4, the employer should check "yes" in H-8 that an alternate level of education ("other") is acceptable.

Section 8-B should set forth the acceptable alternate level of education. If the space is too limited, an asterisk ("*see H-14") could be used to direct an examiner to section H-14, where the alternate combination of education and experience could be explained in greater detail.

We will keep you posted as new information becomes available on this topic. If you have questions about PERM and I-140 Immigrant Petitions, feel free to contact our office.

On May 1, 2013, the U.S. Department of State distributed Change Transmittal (CT) incorporating certain updates and clarifications into Foreign Affairs Manual (FAM). These changes have been subsequently withdrawn by the Department of State and are not yet effective. We are providing this summary to let our readers know what we can expect if the changes are eventually implemented. This summary will address the updates and clarifications of provisions regulating visa applications or unauthorized entry into the U.S. through fraud or willful misrepresentation.

I. Evidence of Fraud and Willful Misrepresentation (9 FAM 40.63 N4.8)

i) Types of evidence

Following evidence can be used:

1. Information taken from the alien's nonimmigrant visa (NIV) application; and
2. A report by an immigration officer that the alien made such a statement (for example, this information could be found on the DHS Form 1-275, Withdrawal of Application/Consular Notification).

During the visa interview, the immigration officer may question the alien about what the U. S. Customs and Border Protection Officer asked the alien when the alien entered the U.S., what the alien responded, and where he or she previously was admitted to the United States.

HOWEVER, under the new updates in FAM, silence cannot be recognized an act of misrepresentation. Affirmative act is required. Questions and responses received during the interview must be captured in written format as the officers’ case notes and can later be used to determine if the alien made an “act” of misrepresentation.

ii) Burden of proof

Although the alien still bears the burden to establish that his or her true intent was to visit and otherwise maintain nonimmigrant status, the updates to FAM provide a better protection to the aliens by expressly requiring factual findings in determination of ineligibility.

What this means is that the alien will be given the opportunity to rebut the factual findings made by the officer by presentation of evidence to overcome the findings of misrepresentation and fraud.

If the alien presents sufficient evidence to overcome the findings of misrepresentation or fraud, the alien is eligible for admission.

If the presumption is not overcome, immigration officer needs to submit a description of the evidence submitted by the alien in an Advisory Opinion, which must include the following:

1. The finding that an act of misrepresentation occurred and a short description of what the act was;
2. Any evidence of such misrepresentation from the actual visa application; and
3. The finding, along with evidence on how the alien violated his or her nonimmigrant status within 30 days; the statement that the applicant has admitted that he or she misrepresented the purpose of his or her visit on the visa application or to the immigration officer.

II. Inadmissibility under INA (9 FAM 40.63 N11)

The updates to FAM made it clear that, in general, an alien who has falsely claimed U.S. citizenship in order to obtain a U.S. passport, entry into the United States, or any other benefit under any U.S. State or Federal law will be permanently barred from entering the U.S.

III. Inadmissibility Provisions for False Claims to U.S. citizenship not retroactive (9 FAM 40.63 N12)

The inadmissibility provisions for false claims of U.S. citizenship (INA 212(a)(6)(C)(ii)) are not retroactive. It means that the permanent bar applies only to aliens who have made false claims to U.S. citizenship on or after September 30, 1996.

Thus, if the claim was made on or after September 30, 1996, then the alien will have a permanent bar for entry into the U.S., which does not have an immigrant waiver available. This means that even if the alien has a U.S. citizen spouse or family member in the U.S. who would like to petition for the alien to come to the U.S., the alien will not be able to do it under the current law as there is no waiver for false claims to U.S. citizenship.

The FAM update clarified that an alien who made a false claim to U.S. citizenship before September 30, 1996, is not inadmissible under the terms of Falsely Claiming U.S. citizenship provision, INA 212(a)(6)(C)( ii ). They are, however, inadmissible under the Misrepresentation Grounds, INA 212(a)(6)(C)(i), provided such claim was made to procure a visa, other documentation, or admission into the United states or other benefit under INA.

The reason why the timing of entry is significant is because if the claim to U.S. citizenship was made before September 30, 1996, then it will be treated as a mere misrepresentation, for which there is a waiver available allowing the aliens to reunite with their family members in the U.S.. Thus, if the waiver is approved, the alien will be able to enter the U.S. if the waiver is approved.

IV. Scope of INA Inadmissibility (9 FAM 40.63 N13)

The updates to FAM added a new provision, which distinguished “misrepresentation” by silence from misrepresentation by alien’s affirmative act.

“[In] determining whether a false claim to U.S. citizenship has been made, it is necessary to distinguish between misrepresentation of information and information that was omitted by the alien's silence. Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purpose of INA 212(a)(6)(C)(ii). A misrepresentation about an alien's citizenship requires an affirmative act on the part of the alien.”

V. Knowledge of Falsity (9 FAM 40.63 N14)

There is no intent or willfulness element in the language of INA 212(a)(6)(C)(ii).

However , the individual 's claim to U.S. citizenship must have been false. For it to be false implies not only that the alien was not a citizen, but that the alien knew that he or she was not a citizen. An alien is not inadmissible under INA 212(a)(6)(C)(ii) if the alien mistakenly believed he or she was a U.S. citizen at the time of the representation. Because this provision is an inadmissibility ground, the alien has the burden of proving the mistaken belief; i.e., that he or she did not know the claim was false.

VI. False Claim by Minors (9 FAM 40.63 N15)

An alien who, while under age 18, falsely claimed to be a U.S. citizen is not inadmissible under INA 212(a)(6)(C)(ii) if the alien can show that, at the time of the false claim, he or she lacked the legal capacity to make a false representation of U.S. citizenship.

The test is whether the alien, at the time of the false claim, had the maturity and the judgment to understand the nature and consequences of his or her actions - in the present context, the nature and consequences of a false citizenship claim. This is an individualized inquiry. The alien has the burden of proving lack of legal capacity.

VII. False Claim to Secure Employment (9 FAM 40.63 N16)

It is unlawful to hire an alien who is not authorized to work in the United States. Thus, an alien who makes false claims to U. S. citizenship to secure employment in violation of INA 274A would be inadmissible.

However, it must be determined that the alien specifically made a false claim to U.S. citizenship in order to secure employment. If, for example, an alien claimed to be a U.S. Legal Permanent Resident in order to secure employment, then INA 212(a)(6)(C)(ii) would not apply.

Since the 02/02/09 edition, the USCIS Form I-9 has included separate boxes, to clearly indicate whether an individual claims to be a U.S. citizen or a noncitizen U. S. national. An individual who falsely claimed on USCIS Form I-9 to be a non-citizen U.S. national would not be inadmissible.

VII. Waiver of Exception for INA Inadmissibility (9 FAM 40.63 N17)

i) Waiver Available for Nonimmigrant Visas

An alien who is inadmissible under False Claiming U.S. citizenship provision, INA 212(a)(6)(C)(ii), and is seeking admission as a nonimmigrant maybe eligible for admission under INA 212(d)(3)(A). This means that even if the alien has false claimed citizenship, he/she may be able to enter the U.S. for a temporary nonimmigrant purpose (tourist, student, etc.) if a nonimmigrant waiver application is approved, provided the alien meets the criteria specified in 9 FAM 40.301 N2.

ii) Waiver for Immigrant Visas

*Note: there is not immigrant waiver available for False Claiming U.S. citizenship, INA 212(a)(6)(C)(ii).

An applicant for an immigrant visa who is inadmissible under Misrepresentation/Fraud Grounds (INA 212(a)(6)(C)(i)) may seek a waiver if:

1. The alien is the spouse, son, or daughter of a U.S. citizen or a lawful resident alien; and
2. The Secretary of Homeland Security is satisfied that the refusal of the alien's admission to the United States would result in extreme hardship to the U.S. citizen or lawful resident spouse or parent of such alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United states citizen, lawful permanent resident, or qualified alien parent or child.

*Parents of a U.S. citizen or lawful resident alien cannot seek a waiver.

* A waiver for misrepresentation is no longer permitted solely on the basis that the misrepresentation occurred 10 or more years ago.

VIII. Additional Exception from Inadmissibility under Falsely Claiming U.S. citizenship provision INA 212(a)(6)(C)(ii) (9 FAM 40.63 N17)

An alien will not be inadmissible under Falsely Claiming U.S. Citizenship provision if the following applies:

An alien who voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation if:

1. Each parent is or was a U.S. citizen by birth or naturalization;
2. The alien resided permanently in the United States prior to the age of 16; and
3. The alien reasonably believed at the time of such violation that he or she was a U.S. citizen.

Please note that this article only focuses on changes to FAM. For unchanged provisions, please refer to the Manual or contact our office for additional information.

In a recent NY Times article, San Diego Mayor Bob Filner spoke about improving economic relations between Tijuana and San Diego. Mr. Filner has taken steps to make progress in improving these relations by opening up an office in Tijuana in order to work closely with businesses and the mayor's office in Tijuana. When he opened San Diego’s Tijuana office this year, Mr. Filner spoke in grand terms about the future of cross-border relations. “Dos ciudades, pero una region — we are two cities, but one region,” he said, using the phrase popular among those who want more collaboration in the area. San Diego would put in a bid for the 2024 Summer Olympics, he said, but only to host jointly with Tijuana.

“We need to make the border the center, not the end — but the biggest problem we have is not security, it is openness and communication,” Mr. Filner said in an interview in his City Hall office. “People have to understand that the infrastructure that we need should be an important part of any discussion on immigration. The volume here is so incredible, yet nobody understands how much this matters. People can’t go back and forth, and we’re losing out.”

“The political buzz made it so that there is a self-evident truth that the border was out of control, and that national stigma remains,” said Paul Ganster, the director of the Institute for Regional Studies of the Californias at San Diego State University. “It might make people from Iowa feel better knowing that it takes hours to cross the border, but a better approach is to fix the border so it functions for legitimate purposes. Right now we’re just penalizing ourselves with huge inefficiencies.”

While several former mayors have had warm relations with Tijuana officials, Mr. Filner has made cross-border relations a centerpiece of his administration, appointing a binational affairs director and mentioning Mexico at nearly every opportunity. In his inaugural speech, he congratulated the Tijuana soccer team, the Xolos, for winning the Mexican league title the day before, calling the team “our champions.” And while the Olympic Committee has already rejected the cross-border bid, Mr. Filner is not deterred.

By creating such dialogue and making strides to improve the economic relations between the two cities, more work will be needed by those who can work bi-nationally. Mr. Filner's emphasis on increasing our economic ties is exactly the kind of thing that will help stimulate an economy that is still in recovery for many parts of the country.

For many professionals in Mexico, the TN visa allows someone to work for a company in the U.S. under one of many professional categories. For those companies that are developing and improving their economic ties to Mexico, this opens more opportunities to take advantage of the building economic ties that Mr. Filner and his office is striving for with Tijuana.

Those who are not TN professionals have other options that may be open as well, given all of the talk about economic movement. The E-2 Investor visa is another way to become involved in business ventures in San Diego. With so much trade going on and the push to open up the border to make it easier on trade, an E-2 investor visa is another way to take advantage of the open climate with trade and business right now.

Right now is a great time to become more involved in making the border stronger with greater economic ties between San Diego and Tijuana. If you are interested in knowing your options and how you can take advantage of this exciting time, our office can provide you the guidance in making your professional and economic goals a reality.

The Senate Judiciary Committee is likely to pass a proposal Tuesday meant to improve information-sharing on foreign students – a direct influence of last month’s bombings at the Boston Marathon – on the ongoing immigration debate on Capitol Hill.

The amendment to the Gang of Eight immigration bill from Sen. Chuck Grassley (R-Iowa) would require the Department of Homeland Security to transmit information about student visas into U.S. Customs and Border Protection databases. If that isn’t done within 120 days, issuing certain student visas would be suspended. Such a precaution would ensure that student visas ran current when a student enters or comes back to the U.S. on that visa.

One alleged accomplice of Dzhokhar Tsarnaev, the surviving suspect from last month’s attack in Boston, was allowed to reenter the United States earlier this year although his student visa had expired. Azamat Tazhayakov, a classmate of Tsarnaev at the University of Massachusetts-Dartmouth, returned to New York from Kazakhstan on Jan. 20, although the school had already dismissed him.

Customs and Border Protection officials had not been told that Tazhayakov was no longer enrolled at the school. Tazhayakov, and his fellow classmate Dias Kadyrbayev, is charged with conspiracy to obstruct justice. Another alleged accomplice, Robel Phillipos, is accused of lying to federal agents. A congressional aide said the Grassley amendment would allow all ports of entry to have the most updated information on student visas.

The bulk of this week’s committee debate on the Senate Gang of Eight bill will center on reforming legal immigration efforts, such as visas for high-skilled workers and a new guest-worker program. A central battle will be protecting the delicately negotiated guest-worker program – a product of negotiations between the U.S. Chamber of Commerce and the AFL-CIO. Earlier Tuesday, senators turned back an amendment from Sen. Jeff Sessions (R-Ala.), a leading critic of the immigration bill, to require a biometric entry and exit system at all ports of entry.

Sen. Marco Rubio (R-Fla.), who is a key member of the Gang of Eight but does not sit on the Judiciary Committee, is “disappointed” that the committee rejected the amendment, spokesman Alex Conant said in an email.

”Senator Rubio will fight to add biometrics to the exit system when the bill is amended on the Senate floor,” Conant said. “Having an exit system that utilizes biometric information will help make sure that future visitors to the United States leave when they are supposed to.”

Another Sessions proposal – this one to limit the total number of legal immigrants to 20 million over a decade – was also rejected. One of Sessions’s many arguments against the immigration bill is that it would introduce an unreasonably high level of immigration to the U.S. that would put American workers at a disadvantage for jobs, while pulling down wages. “I don’t believe that economists would say, particularly for lower-income Americans, that we need more workers right now,” he said. “I just don’t see how that’s possible.”

Still, all senators on the committee besides Sessions shot down the amendment. Sen. Ted Cruz (R-Texas), who has normally allied with Sessions during the committee votes, said he opposed the proposal because he was a “full-throated advocate of legal immigration.”

This Summary will outline the key provisions of the Immigration Reform Bill “Border Security, Economic Opportunity, and Immigration Modernization Act” and will focus mainly on the third large section of the Bill, Future Immigration.

This part of the Bill encompasses the provisions covering new Merit-Based Immigration System, Family-Based Immigration and Employment-Based Immigration. Below we will summarize the main points for each of these sections.

*NOTE: We would like to clarify for our readers that this section applies to “immigrant visas,” which means that after admittance to the U.S. the individuals will have lawful permanent resident status (i.e. will have green cards). This section of the Bill does not refer to nonimmigrant temporary visas.

Follow our blog for the bill’s summary on nonimmigrant visas.

* Please note the bill is not yet the law. It will become the law only if it passes the Senate and the House of Representatives and is signed by the President.

Part I. Merit-Based Immigration System

The bill proposes the creation of a new merit-based visa and points system as a way of legal immigration. Being admitted to the U.S. with a Merit-Based Immigrant Visa means obtaining a lawful permanent resident status (i.e. green card).

Main highlights of the new system:

 1) Diversity Visa Lottery is eliminated and replaced with Merit-Based Points
System

 2) Merit-Based System is divided into “Track One” and “Track Two” Immigrant
Visas

 3) “Track One” Merit-Based System will allow individuals to qualify for permanent
residency (i.e. green card) under the following basic provisions:

• Awards points specified by the act to applicants based on education, employment experience, exceptional employment record, occupation, length of residence in the U.S., family ties in the U.S., knowledge of English language, etc.
• The more qualifying factors that earn points the individual has, the more points he/she will earn
• Individuals with the most points will get the immigrant visas
• Individuals in Registered Provisional Immigrant Status (RPI) or with a pending or approved immigrant petition in another category are not eligible to obtain permanent resident status under the Track One point system
• Initially provides for 120,000 immigrant visas based on the point system that may increase in the future and allows for recapture of unused visas

 4) “Track Two” Merit-Based System will give lawful permanent residency to
• individuals lawfully present and authorized for employment in the U.S. for over 10 years
• beneficiaries of family- and employment-based immigrant petitions pending for 5 years and filed prior to enactment of the Bill.

Part II. Family-Based Immigration Provisions

The Bill proposes the following important updates to the Family-Based Immigration System:

1. Children and spouses of Lawful Permanent Residents will be able to immigrate immediately

Under the new system: children and spouses of lawful permanent residents (“green card holders”) will be considered “immediate relatives” and will be able to immigrate to the U.S. immediately as if they were children or spouses of U.S. citizens.

Compared to the current law: children and spouses of lawful permanent residents (LPR) cannot immediately immigrate to the U.S. and have to wait several years outside of the U.S. (or in the U.S. if they can independently qualify for another status, such as for example F-1, H-1B, L-1, O-1, etc.) before immigrant visas in their category become available. LPR family members are not even provided a separate LPR dependent visa category that would allow them to be in the U.S. to wait for visa numbers. Current law places relatives of LPRs at severe disadvantage and promotes family separation.

2. The bill narrows down family-based categories under which individuals can immigrate to the U.S.

Under the new system:

• There will be only the following family-based categories: unmarried adult children (over 21) of U.S. citizens, married sons and daughters of U.S. citizens under the age of 31, and unmarried sons and daughters (over 21) of LPRs.
• The category of sibling of U.S. citizen will be eliminated 18 months after the enactment.
• Aged out children (who are 21 or older at the time visa number becomes available in the category) will have their petitions automatically converted to petitions of unmarried son or daughter of an LPR upon the parent’s admission to the U.S. as a permanent resident. The children will retain the priority date of the original petition.

Compared to the current law: there are 4 preference categories based on family relationships, including F-1, Unmarried Sons and Daughters (over 21) of U.S. Citizens; F-2, Spouses and Children (under 21), and Unmarried Sons and Daughters of Permanent Residents (over 21); F-3, Married Sons and Daughters of U.S. Citizens; and F-4, Siblings of U.S. citizens.

Under the current law, there is no age restriction for married sons and daughters of U.S. citizens.

*Note: If you are a U.S. citizen who would like to petition for brother/sister outside of the U.S. or for a married son or daughter over the age of 31, consider doing it before these categories are eliminated.

3. Waivers of Inadmissibility

a) Under the new system: parents of U.S. citizens or LPRs will be able to file waivers of inadmissibility for the 3- and 10-year bars (for unlawful presence in the U.S.). Parents who have entered illegally and have become subject to the unlawful presence bars will be able to file waivers and prove hardship to their USC or LPR children. In addition, it will be enough to prove just “hardship” as opposed to the standard of “extreme hardship” that exists today.

Compared to the current law: parents of U.S. citizens or LPRs cannot apply for waivers of inadmissibility of their unlawful presence bars, and they cannot prove hardship to their children, and thus cannot legalize their status. As a result, parents of USC and LPRs are forced to stay in the shadows of the immigration system.

b) Under the new system: limiting the scope of inadmissibility for misrepresentation and false claim to U.S. citizenship.

• The bill adds a 3-year limit on past representations that trigger inadmissibility.
• Requires that false claims to citizenship be “knowing” and exempts children under 18 and those without the mental capacity to make a false claim
• Creates a waiver for misrepresentation and false claims to citizenship that is based upon extreme hardship to the noncitizen or a qualifying relative.

Compared to the current law: no waiver for false claims to U.S. citizenship (allows only for few exemptions) and no time period on past misrepresentations.

4. Other Important Provisions

 • The bill revives V visa to allow certain individuals with approved family petition to live and work in the U.S. or visit the U.S.
 • The bill expands eligibility for K fiancé and spouse visas to Lawful Permanent Residents.

 • The bill allows parents to file an immigrant petition for a stepchild who is under 21 (changed from 18)
 • The bill gives more authority to Immigration Judges and DHS officers to terminate deportation proceedings or waive inadmissibility based on humanitarian grounds (considering public interest and hardship to U.S. citizen or LPR parent, spouse or child of the individual).

Part III. Employment-Based Immigration Provisions

The Bill proposes the following important updates to the Employment-Based Immigration System:

1. Certain categories of individuals will no longer be subject to annual numerical limitations:

• Dependents (spouses and children) of employment-based immigrants;
• EB-1 category, including aliens with extraordinary abilities, outstanding professors and researchers, and multinational executives and managers;
• PhD holders in any field from a U.S. university or foreign equivalent degree holders
• Individuals with advanced degrees in a STEM field (science, technology, engineering or mathematics)
 a) If education was obtained from a U.S. institution of higher education within 5 years before filing of the petition and

 b) Has an offer of employment from a U.S. employer in a related field

• Physicians who have completed the J-1 foreign residency requirements or obtained a waiver

2. The bill removes the requirement of a labor certification for STEM workers (also known as PERM process).

3. The bill eliminates per-country immigrant visa limitations for China, India, Mexico and the Philippines.

4. The bill increases the number of immigrant visas available for employment-based categories and allows for recapture of unused visas (for EB-2 and EB-3 categories visa levels will increase up to 40% compared to existing 28.6%).

5. The bill permanently authorizes EB-5 Regional Center Program, Special Immigrant Non-Minister Religious Worker Program and Conrad 30 Program for foreign physicians.

We will provide summaries of the other provisions of the Bill, including nonimmigrant visa proposals and immigration enforcement in our subsequent articles. Follow our blog for updates.

Please comment below and or email us with any questions.

Many of our Blog readers have been inquiring about the status of the E2 visa for Israel. The following is a recent update by the American Immigration Lawyers Association.

In June 2012, President Obama signed into law legislation that adds Israel to the list of countries eligible for E-2 treaty investor visas. Regrettably, Israel nationals remain ineligible for E-2 status because of delays in implementing the new law.

The legislation is conditioned upon visa reciprocity. Accordingly, once the new law was sent to the State Department for implementation, teams from the United States and Israel began discussing the terms and conditions that E-2 status will provide to Israeli investors in the U.S. and examining whether Israel will provide similar terms and conditions for American investors in Israel. These discussions were complicated by the fact that Israeli immigration law does not currently provide for a visa category that parallels the E-2 visa.

Indeed, Israel has only one nonimmigrant work visa category, with visas issued for one-year validity periods and with an absolute maximum stay in the country of five years. (The E-2 visa, of course, can be issued for an initial period of up to five years.) Moreover, the options under Israeli immigration law for derivative visas on behalf of accompanying family members are extremely limited with no provision for a benefit resembling the E-2's Employment Authorization Document (EAD) for an accompanying spouse.

At the AILA Annual Conference in Nashville, David Newman, the Director of Legal Affairs at the State Department's Bureau of Consular Affairs, estimated that implementation of the Israeli E-2 law could take approximately six months, which is in line with the period that had been required for implementing the law providing for E-3 visa status for Australian nationals several years ago.

The United States Embassy in Israel has published the following update on its website:

http://israel.usembassy.gov/consular/niv/evisas.html

"Investor visa for Israeli nationals President Obama signed the legislation that would add Israel to the list of countries eligible for non-immigrant investor visas in the United States.
The legislation, which was spearheaded by Rep. Howard Berman (D-Calif.), would grant Israelis E-2 investor visas, allowing them to live and work in the U.S. in order to be closer to their investments. The legislation, signed on June 11, 2012, passed the House and the Senate in recent months.

However, the implementation of this visa category will not be effective until the terms and conditions of the final agreement are determined between the two countries. The Embassy will issue a press release as soon as the E2 [sic] investor visa is available to Israeli nationals."

At the April 2013 AILA – Department of State (DOS) liaison meeting, AILA inquired as to the current status of the implementation process; the DOS response was as follows:

"The Department does not yet have a basis for determining that Israel offers equivalent status to U.S. investors in Israel – a statutory prerequisite for issuance of E-2 visas to Israeli nationals. Through our Embassy, we have been working with Israeli government officials to facilitate Israel’s development of a visa status similar to the E-2."

Therefore, nearly a year later the issues involved with implementing the law that provides Israeli nationals with eligibility for E-2 visas seem unlikely to be resolved any time soon. AILA will continue to liaise with Mr. Newman, the American Embassy in Tel-Aviv, and others and will provide further information on the implementation process as it becomes available.

We realize that Israeli investors are anxious and are waiting patiently. We encourage potential investors to stay cautions, and not fall pray into the hands of visa service professionals asking for deposits in anticipation for this law. Once the E2 treaty will be ratified, there will be plenty of time to prepare cases and file with the US Government.

We previously reported on the temporary freeze on filing H2B visas. H-2B petitions for temporary non-agricultural workers are being adjudicated once again at the Vermont Service Center (VSC).

VSC anticipates completing pending petitions by early May, and have advised that no action is required by petitioners. The suspension of H-2B adjudications was imposed by USCIS on March 22, 2013, in response to a court order vacating part of the DOL’s 2008 wage methodology rule for certain H-2B prevailing wage determinations.

VSC management has confirmed that premium processing refunds for H-2B petitions filed in March have all been processed and the Debt Management Office is handling the review and issuance of the refunds. Some refunds have already been issued and petitioners should expect to see those in the coming weeks.

We will keep you posted for more updates.

Una opción disponible para los mexicanos que por cualquier razón quieran trasladarse a los Estados Unidos, es aplicar para la visa E-2, o visa de inversionista.
Desde 1994, México es uno de los llamados Treaty Countries, lo que hace que sus residentes sean elegibles para visas E-2. Mientras que el Departamento de Estado solo dice que la inversión necesaria para calificar para este tipo de vida debe ser "sustancial", recomendamos una inversión en un rango entre 50 mil a 150 mil dólares.

"Los trabajadores ordinarios -calificados o no calificados, no son elegibles", para las visas E-2, de acuerdo a los lineamientos del Departamento de Estado.

Las pocas personas que cumplen con los requerimientos de inversión para calificar para la visa E-2 deben demostrar que están involucrados en sus negocios. La idea de la visa no es solo mover fondos. Necesitamos demostrar que se creó una sociedad, hay un contrato de arrendamiento, se inicia la operación del negocio, esto es lo que le decimos a nuestros clientes.

No se otorgan muchas de estas visas cada año. En el 2011, Estados Unidos otorgó solo 2,699 visas de Inversionista por Tratados Internacionales (llamada Treaty Investor Visa) y por Comerciante del Tratado (Treaty Trader Visa). Este es un número pequeño, comparado con las 7,598 visas de estudiante y las 6,020 de visitante de intercambio aprobadas para mexicanos en el 2011, de acuerdo a las estadísticas del Departamento de Estado.

Sin embargo, el número reducido de receptores de visas E-2 se debe en parte al reducido número de aplicantes - en el 2009, al 70 por ciento de todos los aplicantes se les otorgaron las visas, de acuerdo a un reporte del Departamento de Estado.

Una visa E-2 permite a los mexicanos manejar inversiones que tengan al menos un 50 por ciento de participación mexicana. La visa requiere que la inversión en los Estados Unidos sea sustancial, y genere un ingreso sustancial. Aunque no existen cifras concretas respecto a la inversión mínima requerida, el USCIS (Servicio de Inmigración y Ciudadanía de los Estados Unidos, por sus siglas en inglés) por lo general requiere una inversión de negocio de $50,000 dólares o más, pero la suma a invertir depende de la naturaleza del negocio. Por ejemplo, abrir un restaurante en Downtown San Diego requeriría $500,000 dólares, mientras que abrir un negocio de banquetes podría requerir solo $70,000 por costos de inicio. Es por ello que no existe una cifra fija respecto a la suma mínima a invertir.

Las inversiones E-2 pueden ser cualquier empresa legal que genere ingresos sustanciales. Algunas inversiones exitosas en este rubro incluyen restaurantes, hoteles, instalaciones bancarias, servicios de consultoría, etc. La E-2 no está limitada a este tipo de negocios, sino que se rige por el monto del ingreso que el negocio genera.

La visa E-2 es benéfica para muchos que deseen trabajar y conducir negocios en los Estados Unidos. No se limita solo a los dueños de empresas, puede ser usada por sus Gerentes y trabajadores especializados. El proceso para obtener una visa E-2 es complejo, y no debe ser intentando sin un abogado de migración calificado.

Jacob Sapochnick está considerado uno de los abogados de inmigración más innovadores de los Estados Unidos. Su práctica está dedicada a las leyes de inmigración, representa a empresarios e individuos originarios de todo el mundo, así como a Corporativos, hoteles, restaurantes y otras organizaciones.

This is a very important Change effective today. Be aware that this change applies to nonimmigrants only. It has no bearing on U.S. Citizens and U.S. Lawful Permanent Residents.

Beginning April 30, 2013, U.S Customs and Border Protection will begin automating the I-94 process. Form I-94 provides nonimmigrants with proof that they have been lawfully admitted to the U.S. As part of the automation process, individuals traveling to the U.S. by air or sea will no longer complete or receive a paper I-94 document.

Despite this change, USCIS will continue to require applicants to submit a paper copy of Form I-94 when requesting certain benefits. In addition, other government agencies such as State Departments of Motor Vehicles and the Social Security Administration offices will still require a paper I-94. The paper I-94 may also be useful for work-authorized nonimmigrants to present to their employers during the employment eligibility verification (Form I-9) process, and to demonstrate lawful presence in the U.S. to other U.S. authorities.

Foreign travelers entering the United States at air or sea ports of entry will be able to access their electronic Form I-94 by visiting www.cbp.gov/I94

Upon inspection at the point of entry, CBP will give foreign travelers a tear sheet with instructions on how to look up their electronic Form I-94 on CBP’s website. From this website, they can print out their Form I-94 in paper format. Foreign travelers may
need their Form I-94 when requesting certain USCIS benefits, or when applying for public benefits from other government agencies.

As evidence of lawful admission submitted with a benefit request, USCIS will accept the electronic Form I-94 in paper format obtained from CBP’s website ( www.cbp.gov/I94). This document is the equivalent of the paper versions of Form I-94 issued by CBP and USCIS. In lieu of submitting the electronic Form I-94 in paper format, USCIS will also accept photocopies of the passport pages that contain the individual’s biographical information, visa and admission stamp.

So does that mean you no longer need an I-94 Card? No. We recommend that all travelers print out the I-94 upon each admission to the U.S. It is still needed for a variety of other benefits. In addition, if a person is detained within the U.S., whether at a checkpoint or during a routine stop, having the I-94 in your possession will make it easier for the official to determine that you are in a lawful status.

If you have any questions, feel free to email us or call.

A recent case from the 11th Circuit affirmed a decision by the Board of Immigration Appeals (BIA) regarding departures from the U.S. and what is not considered a "departure" under the regulations. In 2012, the BIA decided Matter of Arrabally where they held "that an alien who has left and returned to the United States under a grant of advance parole has not made a ‘departure . . . from the United States’ within the meaning of [§ 1182(a)(9)(B)(i)(II)]."

In this recent decision by the 11 Circuit, the issue before them was whether the alien was inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II). Under this statute, an immigrant who is not a lawful permanent resident, has been unlawfully present in the United States for one year or more, and seeks admission to the United States within ten years of the immigrant’s departure or removal from the United States is inadmissible. In this case, The Immigration Judge found that Malpica was removable under § 1182(a)(9)(B)(i)(II) because she had left the United States on July 18, 2003. However, she left pursuant to a grant of advance parole, and was paroled back into the United States on July 31, 2003. Under Matter of Arrabally, her exit pursuant to a grant of advance parole does not qualify as a “departure” within the meaning of § 1182(a)(9)(B)(i)(II) and Malpica is, thus, not inadmissible under this section. Thus, this charge of removability cannot be sustained.

This decision by the 11th Circuit conforms with the BIA decision regarding the removability of an individual when they were admitted back to the U.S. pursuant to a grant of advanced parole. Before Matter of Arrabally had been decided, individuals who left the U.S. when they were removable under this provision were always at risk of being denied entry and removable from the U.S. Now, the BIA's decision regarding this issue has been affirmed by one of the circuit courts. So long as the other circuit courts continue to decide the issue in this fashion, individuals who have been granted advanced parole, despite being removable under 1182(a)(9)(B)(i)(II), will not have to worry about being denied reentry or being removed under that statute once they have been admitted.

As a lot of our readers inquired about the detailed provisions of the Immigration Reform bill, we have prepared summaries of the key provisions of the 844 page bill introduced on April 16, 2013 “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744).

We would like to remind our readers that the bill is not yet the law. It will become the law only if it passes the Senate and the House of Representatives and is signed by the President.
Please note that this summary is not intended as a comprehensive overview of all the provisions of the bill. Please consult the full text of the bill to review the proposed Act. Click Here for the Full Text of the Bill.

The provisions of the bill can be divided into Legalization, Legal Immigration, Family-Based Immigration, Employment-Based Immigration, Interior Enforcement, and Border Security.

We will issue summaries for each of these main sections of the bill. Follow our blog for updates.

Legalization of Undocumented Aliens – Proposed Creation of Registered Provisional Immigrant Program

The bill provides for a lengthy legal path of obtaining U.S. citizenship for individuals in unlawful status. Below are the steps on how aliens will be able to legalize their status and become a resident of the U.S.

Step 1. Obtain Registered Provisional Immigrant (RPI) Status – granted for 6 years

General requirements for obtaining Registered Provisional Immigrant (RPI) status for aliens unlawfully present in the U.S. (covers aliens who entered the U.S. illegally or whose authorized period of stay expired):

1. Physical presence in the U.S.

• Must have entered the U.S. on or before December 31, 2011
• Maintain continuous physical presence in the U.S. from December 31, 2011 until RPI status is granted
• Generally cannot leave the U.S. after the date of enactment of the Bill

2. Fees

• Must pay filing fees and a penalty fee of $500
• Must satisfy all federal tax liabilities before filing

3. Ineligible for RPI if certain conditions apply:

• General- If have been an LPR (lawful permanent resident or “green card” holder), refugee, asylee, or lawfully present nonimmigrant (with certain exceptions) notwithstanding any unauthorized employment or status violations, on the date the bill was introduced in the Senate (April 16, 2013).

• In addition, ineligible if the following criminal bars apply (*except convictions that were expunged or set aside):

1) Convicted of felony or 3 or more misdemeanors
2) Convicted of a certain offenses under foreign law if they would make the individual inadmissible or deportable if convicted in the U.S.
3) Unlawfully voted

• In addition, ineligible if the following Immigration Violations apply:
1) Generally, if left the U.S. after the enactment of the bill
2) If committed certain immigration violations, such as for example Falsely claimed to be a U.S. citizen; If national security bar applies; or If public health grounds apply

*Waiver authorized for certain convictions and immigration violations

*The following list provides non-exhaustive list of grounds of inadmissibility that DO NOT PRECLUDE THE INDIVIDUALS FROM OBTAINING RPI STATUS:
 3/10 year unlawful presence bar
 Public charge
 Documentation requirements
 Illegal entry
 Misrepresentation
 Student visa abusers
 Unlawful presence after previous immigration violation
 Certain aliens previously removed
 Individuals with removal orders and those currently in removal proceedings

4. What is RPI Status?

An individual granted RPI status may work for any employer and travel outside of the United States. Generally, individuals on RPI status may not leave the U.S. for more than 180 days at a time.

Individuals who have been granted RPI are not eligible for any Federal means-tested public benefits, premium assistance tax credits, and other benefits under the Patient Protection and Affordable Care Act.

Spouses and children of an RPI may also receive RPI status provided they
 • Are physically present in the U.S. on the date RPI status is granted and on or before December 30, 2012

 • Meet all eligibility requirements for RPI except for physical presence requirement.

5. Duration of RPI status: RPI status can initially be granted for 6 years and may be extended for additional 6 years.

Step 2. Obtain for Extension of RPI Status – valid for another 6 years

Requirements for Extension of RPI status:
1) RPI continues to be eligible for RPI
2) Maintains continuous residence in the U.S.
3) RPI pays back any federal taxes due
4) RPI has to be regularly employed
5) Employment requirement.
 • Must have been regularly employed through RPI period (6 years) allowing gaps of not more than 60 days and Not likely to become a public charge; or
 • Demonstrates an average income not less than the poverty level throughout RPI status.

* Exceptions for full-time students, children, elderly, those with physical or mental disabilities or RPI dependents in addition to certain temporary exceptions.

6) Payment of filing fees and a penalty fee of $500
7) Passes Civics and English exams

Step 3. Obtain Green Card – after 10 years in RPI status

May apply for green card if the following conditions are met:

1) Individual has been grated and remains eligible for RPI
2) Individual cannot have been absent for more than 180 days in any calendar year during RPI status
3) Individual paid all federal taxes due
4) Individual have been regularly employed or can demonstrate income at least 125% of poverty level throughout RPI status. Same exceptions to employment requirement as for obtaining RPI status.
5) Individual must pass Civics and English exams.
6) Individual must register for selective service, if applicable.
7) Individual cannot apply until immigrant visas become available for all other immigrant categories, both family-based and employment-based that were filed before the date of enactment of the bill.
8) Individual must pay filing fees and a penalty of $1000

Step 4. Obtain U.S. citizenship – after 3 years in LPR status

After 3 years in LPR Status, an individual may apply for naturalization under the regular provisions of the Immigration and Nationality Act.

Special Provisions for Obtaining Green Cards for DREAMERs

Instead of general provisions for obtaining RPI, DREAMERs will follow the guidelines in the THE DREAM ACT OF 2013. Those DREAMERs who have been granted RPI in accordance with the DREAM Act will have to demonstrate the following in order to obtain green cards:

 • Has been an RPI for at least 5 years
 • Entered the U.S. initially before the age of 16
 • Has earned a high school diploma or GED in the U.S.
 • Obtained a degree from an institution of higher education or completed at least 2 years of a bachelor’s program or military service for 4 years
 • Has passed Civics and English examples
 • Has passed background checks

Once granted green cards, may apply for U.S. citizenship immediately.

DREAMERs do not have to wait until immigrant visa backlogs are cleared like the general population of RPI holders. There is no numerical limitation on immigrant visas for DREAMERs.

Special Provisions for Obtaining Green Cards for Agricultural Workers

Agricultural workers may obtain “Blue Card Status” or also known as Agricultural Card, which means that they will be authorized employment and travel outside of the U.S. (for not more than 180 days). Workers will receive status if they

 • Undergo background checks
 • Worked for 100 work days during the two year period ending on December 31, 2012
 • Pay $100 in penalty fees
 • Not ineligible under the same grounds as RPI

Agricultural workers may then adjust status and obtain green cards in 5 years after being granted Blue Card status if they

 • Fulfill agricultural employment requirements (regularly employed in agricultural field while on blue card status)
 • Pay back any federal taxes due
 • Pay a $400 fine

We will continue to update our blog readers with the summaries of other provisions of the proposed Immigration reform Bill.

Federal immigration law prohibits the attorney general from letting a noncitizen stay in the United States for any reason if he is convicted of an aggravated felony. The immigration system has held that every conviction for marijuana distribution is such a felony.

In a victory for common sense and fairness, the Supreme Court ruled Tuesday, 7 to 2, that a conviction for marijuana distribution under state law should not in all cases result in automatic deportation.

Adrian Moncrieffe, a Jamaican citizen who arrived legally in the United States in 1984 when he was 3 years old, was ordered deported by an immigration judge because he pleaded guilty in 2008 to possession of 1.3 grams of marijuana with intent to distribute under a Georgia law; that amount is enough to make about three marijuana cigarettes.

The trial court gave Mr. Moncrieffe, a first-time offender, five years of probation, after which the charge would be expunged.

The prosecution in the state case, however, did not prove that he had more than a small quantity of marijuana or that he sold any of it. Under Georgia law, “distribution” does not require receiving payment for the drug. That “ambiguity,” Justice Sonia Sotomayor wrote for the majority, meant that the conviction “could correspond” to either a federal misdemeanor or felony.

But even with a conviction deemed a misdemeanor, Mr. Moncrieffe could still be deported. The difference is, with a minor offense he could ask the attorney general to use discretionary authority to let him stay. If the charge automatically corresponded with a felony, then that option is no longer available to Mr. Moncrieffe. It serves justice to let him make that request.

It is unfair to equate a minor state drug offense with major federal drug felonies and treat them as equivalent in deciding a defendant’s fate under immigration law. The sensible approach taken by the justices in this case should be extended to other cases to prevent minor state offenses from being unjustly used by the immigration system to remove individuals.There is greater good in giving people a chance to continue to contribute here and to stay with the family and friends they have ties to here before using an arbitrary legal mechanism to remove them from the U.S.