Articles Posted in Discretionary Waivers

6312921667_8338e27578_z

On Monday, March 6, 2017 President Donald Trump rolled out a newly revised version of the executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States” following the Ninth Circuit Court of Appeals refusal to reinstate the controversial order that was originally released on January 27, 2017.  The January 27th order had called for a blank travel ban on citizens of seven Muslim majority countries, temporarily barring them from gaining admission into the United States for a period of 90 days, irrespective of their legal status in the United States. These seven Muslim majority countries were deemed “countries of particular concern” by the Trump administration based upon the Department of State’s reports designating these countries as countries presenting heightened security risks to the United States. In addition, in the original order, Donald Trump had called for a temporary 120-day suspension of the U.S. Refugee program preventing refugees from entering the United States, and finally the order suspended the Syrian refugee program indefinitely. These controversial measures threw the country into chaos as thousands of demonstrators flooded airports across the country to show their solidarity for the citizens of the seven Muslim majority countries affected by the order. The order was especially controversial because it affected all non-immigrants including immigrants with valid United States visas, as well as permanent residents. Although these measures were overruled by the Ninth Circuit Court of Appeals in February, the Trump administration has shown that it will not be discouraged by their actions.

In his new executive order, Donald Trump has scaled back the language used in the first executive order removing provisions that indefinitely banned Syrian refugees from seeking admission to the United States, and language which prioritized the admission of religious minorities persecuted in the Middle East. US officials will no longer prioritize religious minorities when considering applications for refugee admission. The new order calls for a travel ban blocking citizens from six Muslim majority countries including Syria, Iran, Libya, Somalia, Sudan, and Yemen from applying for and obtaining visas for a period of 90 days. The order leaves in place a temporary travel ban blocking the admission of refugees into the United States for a period of 120 days to allow more stringent vetting procedures to be put in place. The executive order removes Iraq from the list of Muslim majority countries, whose citizens will no longer be prevented from seeking admission to the United States.

Continue reading

new-piktochart_843_6a8b1e61f05cd05ee2ec4001cba0911607cca5e7

On December 27, 2016 in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) handed down a groundbreaking decision which has changed the analytical framework for determining eligibility of national interest waivers. This new decision will affect foreign nationals who are pursuing a green card based on employment in the EB-2 category, and who are eligible for a “national interest waiver.”

The national interest waiver is a discretionary waiver of the job offer and labor certification requirement made possible by subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act. This section of the INA states that the Secretary may, when it deems it to be in the national interest of the United States, “waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”  In addition to meeting a three-prong test of eligibility, to obtain a national interest waiver, the foreign national must be a member of a profession holding advanced degrees or their equivalent or prove that “because of their exceptional ability in the sciences, arts, or business they will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Without this discretionary waiver, EB-2 applications must be accompanied by a labor certification and their employer must go through the process of advertising the position to prove to immigration that there are no other applicants who are qualified, willing, and able to fill the position that the foreign national is expected to fill. Employers must also meet prevailing wage requirements as established by law. Establishing the national interest waiver in other words made it easier for qualifying foreign nationals in the EB-2 category to skip the job offer and labor certification requirement, streamlining their path to permanent residency.

Continue reading

25537693320_b345a106fc_b

One of the most common questions we often receive during in person and telephonic consultations is whether an aggravated felony may decrease a person’s chances to legalize their status in the United States. The harsh reality is that the immigration options for noncitizen aliens convicted of an “aggravated felony” are severely limited, and in most situations, the immigration laws of the United States subject these individuals to the harshest deportation consequences. Even if you have been lawfully admitted to the United States or are currently a Legal Permanent Resident (LPR) you may be subject to deportation if you commit an aggravated felony. In other words, so long as you are a noncitizen alien, you may be at risk of deportation if you are or have been convicted of what is considered an “aggravated felony” in the United States or any other country. What’s more, aggravated felons lose many of the privileges that are designed to provide relief to individuals from deportation, and in some cases these individuals may be prevented from re-entering the United States permanently, following removal from the United States. The immigration laws of the United States, passed by Congress, contain numerous provisions that are designed to keep criminals outside of the United States, and in turn prevent criminals from being allowed to remain in the United States. While Congress has recognized that there are few exceptions to the rule that should be made in cases where there is a compelling argument to be made in favor of allowing a person found guilty of an aggravated felony to remain in the United States, having taken into consideration the fact that an immigrant’s removal may result in extreme hardship for U.S. Citizens. Unfortunately, these exceptions are very few and far in between, and deportation is the most probable outcome. When it comes to crimes of moral turpitude and crimes that fall under the category of “aggravated felonies” the U.S. immigration system is very unforgiving.

What is an aggravated felony?

An aggravated felony is a term that describes a particular category of offenses that carry with them harsh immigration consequences as punishment for noncitizen aliens who have been convicted of these types of crimes. Noncitizens who have been convicted of an aggravated felony lose the opportunity to apply for most common forms of relief available to law abiding noncitizens, that would have shielded them from deportation. Noncitizens who have been convicted of an aggravated felony for example are ineligible to apply for asylum and may not be readmitted to the United States in the future. An “aggravated felony” is an offense that Congress has labeled as such, and does not actually require the crime to be considered “aggravated” or a “felony” to qualify to be an “aggravated felony.” In other words, the term must not be taken literally. Many crimes that are labeled “aggravated felonies” are nonviolent in nature and constitute minor offenses, nonetheless these crimes fall under the Congressional categorization of an “aggravated felony.”

The myth of what constitutes an “aggravated felony”

For purposes of immigration law, an offense does not need to be considered “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” under the Congressional definition of “aggravated felony.” There are numerous non-violent and trivial misdemeanors that are considered aggravated felonies per the immigration laws of the United States. At its inception, the term referred to crimes that were of a violent and non-trivial nature including such crimes as murder, federal drug trafficking, and illicit trafficking of firearms. Today, Congress has expanded the types of crimes that fall under the category of “aggravated felonies” to include non-violent crimes such as simple battery, theft, the filing of a false tax return, and failure to appear in court when summoned. To view the complete list of aggravated felonies under the Immigration and Nationality Act please click here. Other offenses that fall under this category include sexual abuse of a minor, although some states do not classify these crimes as misdemeanors or criminalize such behavior for example in cases of consensual intercourse between an adult and a minor. In most situations, a finding of any of these offenses will result in the loss of most immigration benefits, and in cases where the noncitizen is already a legal permanent resident or is in lawful status, the noncitizen will be subject to deportation.

Continue reading

387411647_96fa4d50de_z

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.

Continue reading

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.”

katie

It is our pleasure to introduce our readers to our esteemed Paralegal and Case Manager Katie Foley who has worked at the Law Offices of Jacob J. Sapochnick since 2010. Ms. Foley, originally from Santa Cruz, California holds a Bachelor’s Degree in Liberal Studies from Cal State East Bay and her paralegal certificate from San Diego Miramar College. Throughout her career, Katie Foley has assisted our attorneys with various different types of immigration petitions including family-based petitions, employment based petitions (H-1B, E-2 etc.), deferred action, marriage visas, I-751 petitions, fiancé visas, consular processing, naturalization, temporary visas (B-1/B-2, J-1, F-1 etc), deportation and removal cases.  She has successfully processed hundreds of applications and in the process has formed long standing relationships with our clients. In her role as case manager, she assists our legal assistants with their case loads and provides direction as needed. Ms. Foley is an outstanding member of our firm for her impressive attention to detail, her understanding of the law, and the extensive guidance she provides our clients to ensure every case has a successful outcome. She provides all of our client’s strong personal support and comprehensive step-by-step instructions for each immigration process. If you are an international or out of state client, not to worry, Ms. Foley has perfected an easy online case processing system to assist clients with their immigration concerns no matter where they reside. In her free time, she enjoys lap swimming, barbecues, and gardening. To read more about Ms. Foley please click here.

For immigration questions please call our office. Your Immigration is our Passion.

extreme hardship

Yesterday, USCIS released a draft version of what will eventually be used as the policy manual guide of extreme hardship. The policy manual has been created for the purpose of assisting adjudicating officers in making final determinations on the merits of waivers of inadmissibility. Certain aliens, who are found to be inadmissible under specific grounds of the law, can apply for a discretionary waiver in order to adjust their status to permanent residence. In order to do so, the alien must demonstrate their relationship to a qualifying relative (US Citizen or LPR family member) and establish that the qualifying relative would experience an “extreme hardship” in their absence. The policy manual includes guidance relating to general considerations, interpretations of existing law, and adjudication steps that will help consular officers establish whether a waiver of inadmissibility merits a favorable decision and whether the burden of proof has been satisfied by the applicant. The draft highlights important requirements that must be taken into consideration by adjudicating officers when considering the merits of a waiver application. Such requirements include 1) whether the alien has demonstrated that they possess a qualifying relative 2) the presence of an extreme hardship to the qualifying relative and 3) discretionary measures based on the totality of the facts presented. USCIS has invited the public to comment on the draft from now until November 23, 2015.

Continue reading