Articles Posted in EAD

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Yesterday, November 6, 2017, the acting Secretary of Homeland Security, Elaine Duke, announced her decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua, with a delayed effective date of 12 months until the termination of that designation, giving Nicaraguans enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on January 5, 2019.

Furthermore, Duke announced that the TPS designation for Honduras will be automatically extended for six months “from the current January 5, 2018 expiration date to the new expiration date of July 5, 2018.” This automatic extension has been granted because additional information is necessary to determine whether conditions have changed in Honduras that would justify termination of  the country’s TPS designation.

According to Duke’s announcement, the decision to terminate the TPS designation for Nicaragua was made after it was determined that the conditions in Nicaragua have changed since the country’s original 1999 designation that no longer justify granting protected status to this class of individuals. Furthermore, because the Secretary received no formal request from the Nicaraguan government to extend TPS status, and there was no evidence to indicate that the Nicaraguan government could not adequately handle the return of Nicaraguan nationals, the TPS designation for Nicaragua was no longer justified.

GreenCardImageBeginning May 1, 2017, the United States Citizenship and Immigration Services (USCIS) will begin issuing newly redesigned green cards and employment authorization documents with enhanced features and fraud-resistant technology to prevent tampering and fraud. The new technology has been introduced as part of the government’s ongoing effort to enhance the security of these documents and to facilitate detection of counterfeit documents.

The new green cards and employment authorization cards will

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
    • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
    • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.
  • Green Cards will no longer have an optical stripe on the back.

USCIS may continue to issue some green cards and employment authorization cards with the previous design format, after May 1, 2017, until supplies for that design have run out.

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Document Validity

Existing and new green cards and employment authorization cards will remain valid until the printed expiration date indicated on the card. Older generation green cards that were issued without an expiration date will continue to remain valid and acceptable for purposes of filing Form I-9, Employment Eligibility Verification, EVerify, and Systematic Alien Verification for Entitlements (SAVE).

USCIS recommends that individuals who have an older green card that does not have an expiration date apply for a replacement card with an expiration date. Receiving a new replacement card will give individuals the benefit of having a highly secure card with fraud-resistant technology in the case the card is lost or stolen.

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Earlier this year, the final rule “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” amended the current regulation regarding the renewal meaning extension of some work permit/ Employment Authorization (EAD) card.

USCIS made it easier for some foreigners in the U.S. who have an Employment Authorized Document (EAD) card to continue to legally work in the country while their EAD cards are in the process of being renewed. If you qualify under the 3 criteria listed below, you will only have to show your expired EAD card and the receipt notice for the renewal confirming timely filing and these documents will be enough for I-9 verification purpose.

In days past, when an EAD card expired, the foreign worker had to immediately stop working even if he or she was in the process of renewing their EAD card. Unless and until the EAD application was approved by USCIS, the employee could not legally show up to work.  As you can you imagine, this caused a major headache to both the employers and employees, who had to stop working midstream on a project and could not resume working until USCIS had given its blessing.

This partially changed on January 17, 2017. USCIS issued a rule allowing some EAD holders who have timely filed an EAD renewal application to be automatically granted authorization to legally work in the U.S for up to 180 days after their EAD cards expire.

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It is our pleasure to announce that USCIS has now published the Final International Entrepreneur Rule in the federal register. The final rule is estimated to benefit approximately 2,940 foreign entrepreneurs on an annual basis beginning July 17, 2017. The rule will make it easier for eligible start-up entrepreneurs to obtain temporary permission to enter the United States for a period of 30 months, or 2.5 years, through a process known as “parole,” for the purpose of starting or scaling their start-up business enterprise in the United States. The foreign entrepreneur’s stay may be extended for an additional 30 months to allow the entrepreneur to continue to oversee and grow their start-up company in the United States. The decision about whether to “parole” a foreign entrepreneur under this rule will be a discretionary determination made by the Secretary of Homeland Security on a case-by-case basis (INA Section 212(d)(5), 8 U.S.C. 1182(d)(5)).

The goal of this final rule is to encourage foreign entrepreneurs to create and develop start-up companies with high potential for success in the United States, and enhance economic growth through increased capital spending and job creation.  Under this rule “parole” will be granted to eligible entrepreneurs who can demonstrate that their company’s business operations are of significant public benefit to the United States by providing evidence of substantial and demonstrated potential for rapid business growth and job creation. Such demonstrated potential for rapid growth and job creation may be evidenced by: (1) significant capital investment from U.S. investors with established records of successful investments or (2) attainment of significant awards or grants from certain Federal, State, or local government entities.

The final rule will allow up to three entrepreneurs to seek “parole” per-start up entity, as well as their spouses and children. Entrepreneurs who qualify for “parole” may only work for their start-up business entity in the United States. Their spouses in turn will be eligible to apply for employment authorization once in the United States.

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The Department of Homeland Security is expected to publish a final rule tomorrow November 18, 2016 benefitting EB-1, EB-2, and EB-3 employment-based immigrant workers and highly-skilled nonimmigrant foreign workers. The final rule is effective January 17, 2017. The final rule will streamline the process for employment based sponsorship of nonimmigrant workers for lawsuit permanent resident status (LPRs), increasing job portability, and promoting stability, flexibility, and transparency in the way DHS applies its policies and regulatory practices to these programs. These changes were proposed in order to better equip U.S. employers to employ and retain highly skilled foreign workers who are the beneficiaries of employment-based immigrant visa petitions known as Form I-140 petitions. The new rule will allow foreign workers to have more flexibility, and affords workers the opportunity to further their careers by accepting promotions, giving them the freedom of being able to change positions with current employers, change employers, or pursue other employment.

The final rule conforms with longstanding policies and practices in accordance with the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The final rule seeks to further enforce the principles embodied in these pieces of legislation by providing nonimmigrant workers who have been sponsored for permanent residency based on the filing of an I-140 petition, greater flexibility and job portability, while expanding the competitiveness of American employers, boosting the U.S. economy, and protecting American workers. The final rule also clarifies and improves DHS policies and practices outlined in policy memoranda and precedent decisions of the Administrative Appeals Office. The final rule seeks to clarify regulatory policies in order to provide greater transparency to stakeholders. The final rule also clarifies interpretative questions related to ACWIA and AC21.

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In this post we bring you your daily dose of immigration updates. For more information on the immigration services we provide please visit our website. For a free first legal consultation please contact our office. It is our pleasure to accompany you on your immigration journey.

USCIS extends TPS Designation for Nepal for 18 months

The Secretary of Homeland Security recently announced that Temporary Protected Status (TPS) for eligible nationals of Nepal will be extended for an additional 18 months, beginning December 25, 2016 through June 24, 2018. Eligible TPS applicants must either be foreign nationals of Nepal or habitually resided in Nepal. DHS will be extending current TPS Nepal Employment Authorization Cards (EADs) with a December 24, 2016 expiration date for an additional 6 months, valid through June 24, 2017.

For more information regarding TPS for Nepal please click here. For information about the TPS program please click here. Employers interested in verifying or reverifying the employment eligibility of employees who are TPS beneficiaries, may click here for more information.

EADs Extended 6 Months for Guinea, Liberia and Sierra Leone TPS Beneficiaries

Current Beneficiaries of the Temporary Protected Status (TPS) program for the designations of Guinea, Liberia, and Sierra Leone have had their TPS status extended for a period of 6 months, to expire on May 21, 2017. The Department of Homeland Security authorized this temporary extension to allow beneficiaries to make an orderly transition out of the United States, before termination of their TPS status on May 21, 2017. Current beneficiaries of the TPS program from these designations will automatically retain their TPS status until this date, and the validity of their current Employment Authorization Cards (EADs) will be extended through May 20, 2017.

Click here for more information about the 6-month extension of orderly transition before termination of TPS designations for Guinea, Liberia, and Sierra Leone. For general information about the TPS program please click here.

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Today, October 24, 2016 the Department of Homeland Security published the final rule increasing fees for certain immigration and naturalization petitions processed by U.S. Citizenship and Immigration Services (USCIS). Overall the Department of Homeland Security increased filing fees for certain petitions by an average of 21 percent. The new fees will be enforced by USCIS beginning December 23, 2016. The fee schedule has been adjusted following the agency’s decision to conduct a comprehensive review of filing fees for fiscal year 2016/2017. USCIS determined that an adjustment in the filing fees would be necessary in order for USCIS to recover costs for services expended and maintain adequate service. The proposed fee schedule was first published on May 4, 2016. The final rule clarifies that all persons applying for immigration benefits may be required to appear for biometrics services or an interview, and thus must pay the biometrics services fee accordingly.

EB-5 Investor Visa Program

The EB-5 Immigrant Investor Visa Program will be most heavily impacted by the new fee schedule. The new filing fee for Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program, will increase by a rate of 186% requiring Regional Centers seeking designation under the program, to pay a filing fee of $17,795 instead of the current rate of $6,230. Regional Centers will be required to pay a $3,035 annual fee to certify their continued eligibility for the designation.

The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, will increase to $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence remains unchanged.

Naturalization

USCIS has established a three-tiered fee schedule for naturalization applicants filing Form N-400 Application for Naturalization. First, the fee schedule includes a standard filing fee for most applicants, from a rate of $595 to $640. Second, DHS has established a reduced fee of $320 for naturalization applicants whose household income is greater than 150% but less than 200% of the Federal Poverty Guidelines. Third, there will be no filing fee for naturalization applicants who are members of the military, applicants with approved fee waivers, and others who may qualify for a fee waiver according to sections 328 or 329 of the Immigration and nationality Act (INA).

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Our clients often ask us what the difference is between adjusting their status within the United States versus applying for a green card at a United States consulate abroad. In order to adjust your status to permanent resident within the United States by filing Form I-485, you and your spouse must be living inside of the United States at the time of filing. The intending immigrant must also have entered the United States legally in order to adjust status within the United States, although there are few exceptions (as is the case of individuals who qualify for 245i). This means that generally, in order to qualify for adjustment of status, you must have been inspected by a U.S. Customs official at a United States port of entry. As part of the Adjustment of status process, the green card applicant must be able to prove that they were inspected upon entry by showing their I-94 arrival/departure record. The I-94 is a small white paper that is placed in the passport containing a stamp of admission with the date of entry, place of entry, the person’s name, I-94 number, and other important details.

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Sample I-94 arrival/departure record

If you did not receive a paper I-94 in your passport, you may obtain your I-94 electronically by visiting the DHS website.

Consular processing on the other hand is an option that is typically utilized for spouses of US Citizens residing abroad and/or foreign spouses who have never visited the United States, do not have a United States visa, or cannot obtain one, because they are already married to a US Citizen. Foreign spouses who are obligated to travel frequently such as businesspersons may also prefer to obtain an immigrant visa through ‘consular processing’ because this process does not prohibit international travel. Adjustment of status applicants on the other hand are prohibited from traveling internationally once the I-485 green card application has been filed, unless they have received travel permission from USCIS known as an advance parole document. If the applicant travels without this advance parole document, the I-485 application will be considered abandoned.

Advance Parole for Adjustment of Status Applicants

In order to receive this advance parole document, the applicant must file Form, I-131 Application for Travel Document at the same time as Form, I-485 in order to return to the United States after temporary foreign travel. If the applicant wishes to apply for a work permit they must also file Form, I-765 Application for Employment Authorization. There is no additional fee for the I-131,765 applications if the applicant has a pending I-485 application with USCIS. The I-131,765 applications take approximately 90 days to process from date of filing and culminate in a travel/work permit combo card known as the EAD (Employment Authorization Document). This document allows the applicant to work, travel, obtain a SSN number, and driver’s license. Consular Processing applicants do not receive any travel or employment authorization and cannot obtain a driver’s license or SSN until they have received their green card once they enter the United States with an immigrant visa.

Adjustment of Status Benefits

There are many benefits that come with adjusting your status within the United States however to qualify you and your spouse must be living in the United States and you must have been inspected upon entry to the United States (with few exceptions), otherwise you are not eligible to apply for adjustment of status within the United States. If you have committed any immigration violations or have a serious criminal history, you must consult an attorney.

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Last week our very own managing attorney Jacob Sapochnick, Esq., and associate attorney Yingfei Zhou, Esq. had the pleasure of attending the 2016 American Immigration Lawyers Association (AILA) Conference on Immigration Law in Las Vegas, Nevada. Together, they bring you the most up to date information on the new N-400 online filing system and new N-400 form, the new customer service tool EMMA—a computer-generated virtual assistant, information regarding delays in adjudication of H-1B extension/transfer applications and Employment Authorization applications, filing tips for H-1B extensions, updates on EB-1C Multinational Executive/Manager green cards, Employment Authorization eligibility for spouses of E-2 and L-1 visa holders, and updates on Administrative Appeals Office (AAO) Decisions.

New Naturalization Form and N-400 Online Filing System

  1. USCIS recently published a new N-400 form on 04/13/2016. Applicants may use the previous 09/13/2013 version until 08/09/2016. Any naturalization applications received on or after 08/10/2016 containing the old form with revision date 09/13/2013 will be rejected and returned to the sender.
  1. USCIS is currently testing a new N-400 online filing system. This system will be available to applicants without legal representation and will eventually become available to applicants represented by an immigration attorney.

New Customer Service Tools EMMA

  1. USCIS is introducing a new customer service tool called EMMA – a computer-generated virtual assistant who can answer your questions and even take you to the right spot on the USCIS website. EMMA is USCIS’ version of ‘Siri’ and is designed to help you navigate the USCIS website. EMMA is available in the Spanish language. So far, EMMA has managed to answer 80% of questions asked.

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Throughout the next few months, USCIS will begin the process of returning H-1B petitions that were not selected in the H-1B lottery for fiscal year 2017. Each package will contain the respective H-1B petition along with a rejection notice specifying that the petition was not selected in the lottery. If you would like a copy of your rejection notice, please contact your employer or the attorney that filed your petition with USCIS. If you were not selected in the H-1B lottery for fiscal year 2017, there are a few visa options you may want to consider applying for. As always you can visit our website to read about the various different visa types that may be available to you. To discuss your options moving forward, please contact us for a free consultation. Do not despair. Many applicants that were not selected in the H-1B lottery in previous years, have been chosen in subsequent years.

Long Term Options for Employment

Employment-Based Green Card

Typically, the employment-based green card application is the most permanent long term option for employment. The drawback is that obtaining an employment-based green card is a very long process that will require you to maintain another nonimmigrant status, while your green card application is pending. For more information on employment-based green cards please click here.

Family-Based Green Card (Adjustment of Status within the United States)

If you are the spouse, parent or child of a U.S. citizen, you may be eligible for family-based permanent residency. The green card application includes the application for employment authorization, which is granted within 3 months of filing. Employment authorization allows the applicant to work while their application is in process. Please be aware that the 3-month time frame for employment authorization is only for applicants applying for adjustment of status from within the United States. For more information about this process please click here.

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