Visa Lawyer Blog

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In this blog post we highlight the best features of E-2 Treaty Investor Visa program, for individuals seeking to live and work in the United States for a temporary period of time.

First let’s discuss what the E-2 visa is. The E-2 visa is a non-immigrant visa type, which means that it is a temporary visa option for individuals who do not wish to immigrate to the United States, but rather are interested in remaining in the United States for a limited period of time.

Secondly, the E-2 visa is a treaty investor visa. This means that in order to qualify for this visa type you must be a national of a country with which the United States maintains a treaty of commerce and navigation. This visa type allows a national of a treaty country to apply for admission to the United States under the E-2 visa category for the purpose of investing a substantial amount of capital in a United States business.

Currently, 89 countries maintain a treaty of commerce and navigation with the United States. Israel and New Zealand are the most recent countries to enter into a treaty commerce and navigation with the United States, allowing nationals of these countries to participate in the E-2 visa program. For a complete list of the countries with which the U.S. maintains a treaty of commerce and navigation, please click here.

The most frequently asked question when it comes to the E-2 visa is, how much money must I invest in order to qualify for this visa type?

The amount of money that must be invested depends on the nature of the business’ operations. USCIS defines the amount of capital to be invested as “a substantial amount of capital” interpreted as:

  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

Thirdly, to qualify for the E-2 visa the investment must be in a bona fide business enterprise that is real, active, and operating and is producing either services or goods for profit. Passive investments are not allowed.

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We have news for petitioners seeking to use premium processing services. The Department of Homeland Security published a final rule in the Federal Register on October 31, 2019 to increase the premium processing fee to account for inflation.

The adjustment increased the premium processing fee from $1,410 to $1,440 beginning December 2, 2019. This increase in fees applies to applications postmarked on or after December 2, 2019.

What is Premium Processing Service?

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The U.S. Department of State recently released the December 2019 Visa Bulletin. In this post, we will discuss the current state of the visa bulletin, potential for advancement, retrogression, and predictions.

Family-based Preference Categories

The Final Action Date for F2A has been current and remains current since July 2018 across all countries through December. Low demand in this category has made it “current” and is expected to remain current for the foreseeable future.

Movement for all other family-preference categories remains as before.

F-4 visa demand is increasing which may result in slow movement in this category in the foreseeable future, but not nearly enough to cause a retrogression.

Employment-based preference categories

Overview

For the month of December 2019, EB-2 Worldwide, as well as EB-2 El Salvador, Guatemala, Honduras, Mexico, Philippines, and Vietnam remain current.

Similarly, EB-3 Worldwide, as well as EB-3 El Salvador, Guatemala, Honduras, Mexico, and Vietnam remain current.

The Visa Bulletin notes that visa availability is likely to slow down for employment-based visa categories due to the steady increase in the level of employment-based demand for adjustment of status cases filed with USCIS. If the current pace of demand continues, a final action date will be implemented for EB-2, EB-3, and EB-3 Other Worker preference categories as early as January.

Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State has reported that if the level of demand subsides, it is possible that these categories will remain current, however there is no evidence that demand will slow down for these categories, therefore visa applicants should be prepared for the implementation of Final Action Dates as early as January 2020.

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In this blog post we cover where the top democratic presidential candidates stand on the issue of immigration. At the moment only three Republicans have announced their participation in the 2020 election, therefore we will focus on the democratic candidates until more Republican candidates have formally announced their presidential bids.

On the democratic front, over sixteen candidates have formally announced their participation in the 2020 Presidential election, with many more rumored to join their ranks in the coming months.

Over the last five months, presidential hopefuls, Former Vice President Joe Biden, U.S. Senator Bernie Sanders, U.S. Senator Kamala Harris, U.S. Senator Elizabeth Warren, and U.S. Senator Amy Klobuchar, have battled one another taking part in debates across the country. Not surprisingly, the topic of interest in these debates has turned to immigration.

Joe Biden

Joe Biden is a familiar face to all Americans, having served as former Vice President during the Obama administration for 8 years, but Joe Biden’s performances in the latest democratic debates have been lackluster at best.

In a recent debate moderators criticized Joe Biden for being part of an administration that was responsible for deported 3 million people, the most in United States history. When asked if he did anything to prevent the deportations, Biden deflected stating that his own power was limited and that the former President “did the best that was able to be done.”

Joe Biden has appeared weak on immigration. Although he has acknowledged that the American immigration system is broken, he has provided few solutions on how to unify Congress to pass comprehensive immigration reform. Joe Biden has also prioritized securing the South West border and publicly stated during debates that undocumented immigrants need to “get in line,” to obtain legalization like everyone else.  Like his predecessors Joe Biden’s immigration policy prioritizes the entry of highly skilled immigrant workers, and fails to offer solutions to the millions of undocumented immigrants living and working in the United States for decades.

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After a long and contentious battle in several courts across the nation, the fate of DACA now rests in the hands of nine Supreme Court justices.

On Tuesday, November 12, 2019, the justices heard the first oral arguments in the lawsuit seeking to end DACA.

During opening arguments, the justices gave us a small glimpse into what might be in their hearts and minds.

When the Solicitor General proposed to the justices that the Supreme Court did not have the authority to decide the case on the merits because DACA was a discretionary program which began under the Obama administration, the liberal justices on the court pushed back.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the first to disagree. Justice Ginsburg pointed to a flaw in the Solicitor’s argument stating that the Solicitor General could not argue that on the one hand the DACA program could not be reviewed by the Court because it was created under Obama’s administration as a discretionary program, and on the other hand that the Obama administration had no discretion to authorize the program because it was illegal to do so.

Sonia Sotomayor further attacked the Solicitor’s arguments stating that the President himself has issued conflicting remarks about the legality of the DACA program, stating first that Dreamers would be “safe under him,” and later terminating the program altogether.

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Great news for Polish nationals. Effective November 11, 2019, Polish nationals may travel to the United without a visa, using only their Polish passports and an approved ESTA.

Back on October 31st the Department of Homeland Security designated Poland as a country eligible to participate in the Visa Waiver Program. Recently, the Department of Homeland Security published a final rule making the designation official.

Poland joins thirty-eight countries currently participating in the Visa Waiver Program.

What is the Visa Waiver Program?

Citizens or nationals of countries participating in the Visa Waiver Program may travel to the United States for tourism or business without having to apply for a tourist visa at a U.S. Consulate abroad. Participants are eligible to remain in the United States for a temporary period of 90 days or less.

In order to travel without a visa on the Visa Waiver Program, citizens must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier. ESTA is an online system that is used to determine eligibility to travel under the VWP to the United States for tourism or business.

How long is an ESTA valid for?

Once approved, the ESTA is valid for a period of two years. You must obtain a new ESTA if you receive a new passport, change your name, change your gender, change your country of citizenship, or your responses to “yes” or “no” questions on the ESTA application must be updated.

What are the Requirements?

Travelers must have a valid machine-readable passport issued by the participating country and be a citizen or national (not only a resident) of that country.

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On November 14, 2019, the United States Citizenship and Immigration Services will publish a proposed rule in the Federal Register to increase immigration fees for certain petitions. After publication, the proposal will be open for a 30-day comment period. After that point the agency will review public comments and draft the final rule. At this time there is no definitive date set out in the proposed rule for enforcement of these fees. Therefore, readers should note that these fee increases will likely not take effect until well into Fiscal Year 2020.

What does the rule propose?

The rule proposes the following fee increases by immigration benefit:

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Moreover, DHS proposes that fees for the following types of petitions be limited to a 5 percent increase above current fees:

  • Form I-290B, Notice of Appeal or Motion.
  • Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.
  • Form I-600, Petition to Classify Orphan as an Immediate Relative
  • Form I-600A, Application for Advance Processing of an Orphan Petition
  • Form I-600A/I-600, Supplement 3, Request for Action on Approved Form I-600A/I600.42
  • Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative.
  • Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country.
  • Form I-800A, Supplement 3, Request for Action on Approved Form I-800A

Changes to Fee Waiver Requests

DHS further proposes to limit fee waivers grants to individuals who have an annual household income of less than 125 percent of the Federal Poverty Guideline as defined by the U.S. Department of Health and Human Services (HHS).

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In this post, we discuss the latest developments in U.S. immigration news.

As you may recall, back in September USCIS issued a proposed rule requiring petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition submitted to USCIS for the H-1B cap selection process, beginning with the H-1B fiscal year 2021 cap season.

Today, November 7, 2019 the United States Citizenship and Immigration Services (USCIS) published the final version of this rule which will become effective beginning December 9, 2019, although the $10 fee will not be required until registrations are submitted beginning with the fiscal year 2021 H-1B cap selection process.

The final rule is scheduled to be published in the Federal Register tomorrow November 8th. An unpublished version of the rule is available here.

Extension of Temporary Protected Status

On November 4, 2019, USCIS published a notice in the federal register announcing the automatic extension of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

TPS-related documentation for individuals from these countries will remain valid through January 4, 2021.

This automatic extension will apply to all TPS-related documentation (including Employment Authorization Cards) set to expire on the following dates:

  • Beneficiaries under TPS designations for El Salvador, Haiti, and Sudan—January 2, 2020
  • Beneficiaries under TPS designations for Honduras—January 5, 2020
  • Beneficiaries under TPS designation for Nepal—March 20, 2020

A beneficiary under the TPS designation for any of these countries who has applied for a new EAD but who has not yet received his or her new EAD is covered by this automatic extension, provided that the EAD he or she possesses contains one of the expiration dates indicated above.

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In the latest blow to President Trump’s embattled Presidency, on November 2nd federal judge Michael Simon issued a preliminary injunction blocking the government from enforcing the President’s Proclamation issued on October 4, 2019, suspending the entry of any immigrant who will “financially burden the United States healthcare system.”

Judge Simon’s decision came just one day before the government’s planned implementation of the Presidential Proclamation.

The judge’s order applies nationwide and prohibits the government from implementing any part of the Proclamation requiring individuals seeking an immigrant visa to provide evidence “to a consular officer’s satisfaction” that they would either be covered by an approved health insurance within 30 days of entry to the United States, or possess the financial resources to pay for reasonably foreseeable medical costs.

Judge Simon’s decision came in response to a class action lawsuit filed in Federal District Court in the District of Oregon by seven United States Citizens and a non-profit organization against the Trump administration, challenging the legality of the Presidential Proclamation.

Plaintiff’s argued that the Proclamation should be found unlawful because it does not advance the President’s goal of reducing the burden of uncompensated care for uninsured individuals. Plaintiff’s called into question the President’s true intentions in issuing the Proclamation, stating that the Proclamation “is but the latest link in a long chain of statements and actions by this President and his Administration expressing antipathy toward all noncitizens. . .particularly immigrants of color, from Central and Latin America, Africa and the Middle East.”

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The President has once again targeted the immigrant population by signing a Presidential Proclamation suspending the entry of any immigrant who will “financially burden the United States healthcare system.”

While the Presidential Proclamation is likely to encounter resistance in court, as it stands the Proclamation is slated to become effective on November 3, 2019.

According to the Proclamation, a person seeking to immigrate to the United States will be found to be a financial burden on the U.S. healthcare system, unless they can prove either one of the following:

  • They are covered by approved health insurance, within 30 days of their entry to the United States, or
  • They have the financial resources to pay for reasonably foreseeable medical costs.

Beginning November 3, 2019, prior to the adjudication and issuance of an immigrant visa, a non-citizen seeking to immigrate to the United States, must establish to the satisfaction of a consular officer that they will not become a burden on the health care system by either of the means outlined above.

Who does the Proclamation apply to?

Only non-citizens seeking to enter the United States pursuant to an immigrant visa.

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