Visa Lawyer Blog

Articles Posted in Immigrant Visas

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Since the year 1990, USCIS has administered the Immigrant Investor Program, better known as ‘EB-5’. The program was first launched by Congress with the goal of expanding the U.S. economy by encouraging job creation and capital investment through foreign investment. It has now become known for its Regional Center pilot immigration program, with the purpose of allocating certain EB-5 visas to investors in Regional Centers designated by USCIS. These Regional Centers support the goal of economic growth. Recently, the program director of the pilot immigration program, Nicholas Colucci, held a conference with EB-5 stakeholders assuring them that he is committed to revitalizing the program. This action by Colucci signals an interest in making the EB-5 process more efficient, transparent, and resourceful. First a brief overview of the EB-5 visa process:

General Guidelines:

  • Under section 203 (b)(5) of the Immigration and Nationality Act also known as INA, 10,000 EB-5 immigrant visas are allocated per year
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Beginning September of 2012, USCIS began granting what is known as deferred action to children who arrived to the United States before reaching the age of 16, having met other various requirements. Eligible deferred action applicants received an employment authorization good for a period of up to two years from USCIS. Applicants who applied for deferred action early on are now facing the expiration of their initial two year employment authorization granted to them by USCIS. Due to this, a DACA renewal process is currently underway, giving qualified applicants the opportunity to request and extend their deferred action, in order to avoid unlawful presence in the United States and be able to continue their employment. Details regarding the renewal process will be released in late May 2014, at which time USCIS anticipates that Form I-821D will be used for the dual purpose of initiating DACA petitions and renewal requests. All DACA applicants who wish to file a renewal request must wait until USCIS releases the new form designated for that purpose. Applicants that wish to file an initial deferred action request and not a renewal, can continue to file using the form currently available.

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On April 07, 2014, in a much awaited public announcement, U.S. Citizenship and Immigration Services announced that it had already reached the statutory cap of H-1B petitions allotted for the 2015 fiscal year. According to the announcement, on the first five days USCIS began to count H-1B petitions, it was already flooded with more than 65,000 of regular cap H-1B petitions and more than 20,000 H-1B petitions qualifying for the advanced degree exemption.

USCIS began accepting H-1B petitions subject to the 2015 fiscal year cap on April 01, 2014. The H1-B visa program is utilized by U.S. businesses seeking to employ foreign workers in what are known as ‘specialty occupations’. Specialty occupations are those that necessitate highly specialized knowledge, whether theoretical or practical, as stated on the USCIS website. Specialty occupations include but are not limited to scientists, doctors, mathematicians, or engineers.

According to the announcement, USCIS completed initial intakes for all filings received by the filing deadline (April 07, 2014), and will conduct a random computer generated selection process also known as a lottery system of selection. Under this process, USCIS will select the number of petitions necessary to fulfill the 65,000 visa cap limit for the general category, and the 20,000 visa cap limit under the advanced degree exemption. Those whose cap-based petitions are not selected will have their cases rejected and filing fees returned to them. As stated by USCIS, the computer generated selection process will consider the advanced degree exemption first. Advanced degree petitions that are not accepted through the initial lottery system will be subjected to the lottery system for the general category.

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Reactions to the release of the House GOP leadership’s principles for immigration reform  tended more toward cautious praise for releasing something as a starting point, but with serious doubts about the shortcomings of the actual policy proposals. Because these principles are guidelines—without specific  detail—“cautious optimism” is probably the healthiest approach to take in understanding what the document means for reform. Summarizing what the document says doesn’t take long; understanding its nuances, particularly its omissions and departures from the past, requires a bit more digging. In reality, this new document should not be read as an unwavering set of principles, but rather  as a list of expectations and strategic choices. The first half, dealing with enforcement contains no real surprises, but the second half is full of them.

There is much rhetoric about the necessity of securing our borders and creating a zero-tolerance policy for people who violate our laws in the future. These standards endorse the use of an electronic work site verification program and the full implementation of an entry/exit registration program for tracking arrivals and departures to and from the U.S. They emphasize the necessity of enforcement of laws first, before turning to any more positive reforms. Ultimately, the enforcement section of the document merely repeats the idea that we must be able to measure enforcement successes and thwart efforts to get around the law.

The second half of the GOP stance is far more interesting, as it emphasizes rewarding hard work and merit, and puts a premium on outcomes. The authors declare that the legal immigration system needs to be reformed to avoid an over reliance on family ties or luck; instead, they prioritize rewarding foreign students who can contribute to the economy and meeting the needs of employers. Similarly, temporary work programs, particularly in agriculture, have to provide realistic and predictable means of entry to the U.S., without harming the interests of native-born workers. It is striking how the emphasis on finding a way to use the immigration system to improve the economy is an acknowledgment of the importance of immigration that has been lacking in the past.

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Since the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in China has a more recent cut-off date than the second preference employment-based category (EB-2). This has held true even as recently as the December 2013 Visa Bulletin, which indicates that the EB-3 category has a priority date earlier than October 1, 2011 compared to the EB-2 category which has a priority date of November 8, 2008. Because of the more recent priority date for the EB-3 category, it is important to recognize what options to pursue when filing an I-140 petition under either category for a Chinese national.

Under 8 CFR section 204.5(a), an I-140 petition generally must be accompanied by an original labor certification to be considered properly filed. Section 204.5(e) allows the alien to retain the priority date of an approved I-140 petition and apply it to any I-140 petition that is subsequently filed on his or her behalf, whether the I-140 petitions were filed by the same or different employers. This is true even if the same labor certification, which would qualify for either EB-2 or EB-3, is the basis for multiple I-140s.

While there is a 180-day validity period for individual labor certifications, USCIS recognizes an exception to this period when “an amended petition is filed to request a different visa classification than the visa classification requested in the previously filed petition. Although it is more common to see petitions file an upgrade from an EB-3 preference category to an EB-2 preference category, the current circumstances for Chinese Nationals pose a situation where “downgrading” to the EB-3 category is more beneficial if the prior petition was based on the EB-2 category. Since it is possible to file an EB-2 and an EB-3 petition based on the same labor certification, there are some considerations to keep in mind for those who have gone ahead and pursued the EB-2 route, since it had normally been the faster route to permanent residence for Chinese nationals. Some of these considerations for filing a subsequent I-140 petition include the following:

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Today, the United States Supreme Court struck down the Defense of Marriage Act (DOMA), describing the federal law as an assault on fundamental human rights. In his opinion, Justice Kennedy said the law served “no legitimate purpose” to justify the effect of the law, and was a way to “disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.”

In concluding the decision, the Supreme Court concluded that “DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimeswithin the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

In response to this decision, President Obama stated in a statement released by the White House the federal law “treated loving, committed gay and lesbian couples as a separate and lesser class of people,” He said the Supreme Court has “righted that wrong, and our country is better off for it.”

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Some good News about the February Visa Bulletin. The employment-based, second preference (EB2) category cutoff date moves forward by a full year, to January 1, 2010 for India and China. This is actually very encouraging for many applicant out there.

The decision to dramatically advance the cutoff dates is based on USCIS reports of low rates for adjustment-of-status (I-485) filings, despite recent EB2 cutoff date advancement. This greatly expands the number of individuals who soon will be eligible to file Form I-485 toward becoming U.S. permanent residents. Nevertheless, visa numbers could stop advancing or even retrogress very soon. The logical thing to do is act fast and file if your number is current.

It is sad to see so many qualified well educated applicants, struggling to plan a future in the US. If the priority date system is not to change in the near future, expect more qualified talent leaving our shores to Europe, Canada and Australia. They know how to welcome qualified, well educated immigrants.

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On November 9, 2011, USCIS posted for comment the Draft Memorandum on EB-5 Adjudications Policy. The Memo provides clarifications on the current law and policies concerning adjudication of EB-5 petitions. American Immigration Lawyers Association (AILA) provided its comments and suggestions for the Final Memo. AILA pointed out the major issues with the Draft Memo. Attorney Ekaterina Powell from our law office has prepared this summary to address the most important AILA’s comments that hopefully will be considered by USCIS.

New Commercial Enterprise

First of all, of major concern is the definition of a “new commercial enterprise.” The Draft memorandum does not provide clear analysis on what is considered a “new commercial enterprise.” Accordingly, the Memo should be supplemented with the explanation on what business will qualify under the regulations.

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Below is the story of several individuals who were able to come to America through asylum. These individuals have built families here, have jobs and contribute to America by doing their duty like any American citizen. Unfortunately, these individuals have not been able to gain permanent residency since coming to the United States….

Nassir Al-Rifahe never thought his love for America would be questioned.

As a member of the Iraqi National Congress, he worked for years to topple Saddam Hussein before being granted political asylum in the United States in 1997.

But for the last decade, while Mr. Rifahe, 57, lived quietly with his family in Texas and Minnesota, the Department of Homeland Security has refused to grant his application for a green card, instead letting the case languish unresolved.

Under a sweeping section of federal immigration law, the government considers Mr. Rifahe to have engaged in terrorist-related activity, making him ineligible to live here permanently. That the group Mr. Rifahe worked for was once supported by the United States and tried to overthrow Saddam Hussein matters little.

“It is not fair; I want to stay here,” Mr. Rifahe said. “How come they helped me before, but now they say I am a terrorist? I can’t believe this. Never would I do this.”
An estimated 4,000 cases similar to Mr. Rifahe’s are on hold around the country. Some have dragged on for years as immigration officials wrestle with how to handle people previously granted political asylum or refugee status in this country, but whose past affiliations technically bar them from permanent residency.

Many of the cases involve people who belonged to groups in their homelands once backed by Washington, immigration lawyers and human rights advocates say. Often, it is their connection to those groups that allowed the immigrants to come here in the first place.

The situation has created a conundrum for United States Citizenship and Immigration Services, which acknowledges that the individuals pose no threat to national security. But the agency says existing law would force their green card applications to be denied and has instead placed the cases on hold until special exemptions can be created.

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Many Israelis were defrauded by Mr. San Klein in the past decade, he is known to be the mastermind behind the R1 visa fraud scheme.He admitted orchestrating a multi-faceted fraud scheme that included filing false tax returns and making false claims to enable aliens to obtain religious worker visas and has been sentenced to 63 months in federal prison.

The R-1 visa category is suitable for religious ministers and for persons working in a religious vocation or occupation wishing to migrate to the United States of America. Under the program, churches, synagogues and mosques can ask the gove rnment to grant visas to foreigners to fill vacant positions. The sponsoring group or the foreigner may file the application. An applicant must include letters from a sponsor attesting that he or she has been a member of its denomination for at least two years, that the applicant will fill a specific religious position and is qualified for the job. The application also must provide evidence that the sponsor is a bona fide religious organization that qualifies for nonprofit tax status.

The U.S. government issues several thousand religious worker visas each year. There are two types: temporary three-year visas, and “green cards” that allow foreigners to become permanent residents. The Homeland Security study looked only at petitions for green cards, but the report noted that the three-year visa program faces identical fraud risks. The program dates to 1990, and has been used primarily by the Catholic Church. The State Department said that statistics breaking down recipients by faith are not available, but the majority do not come from predominantly Muslim countries. The program has long been suspected of being susceptible to fraud.

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