Articles Posted in Permanent Residents

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Following a dramatic turn of events, on Friday, February 3, 2017, a federal judge from the Western District of Washington, issued a Temporary Restraining Order (“TRO”) halting enforcement of the President’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” nationwide. The temporary restraining order was issued in response to an emergency motion filed by the state of Washington and Minnesota. The states collectively filed the motion seeking declaratory and injunctive relief against the controversial executive order which bans the entry of immigrant and non-immigrant foreign nationals from seven Muslim-majority countries (Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen) for a 90-day period, suspends the U.S. Refugee Admissions Program for a 120-day period, and terminates the Syrian refugee program indefinitely.

In his ruling, Judge Robart stated that after hearing arguments, the States adequately demonstrated that they have suffered immediate and irreparable harm because of the signing and implementation of the order, and that granting a TRO would be in the public interest. In addition he stated “the Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States. . . are significant and ongoing.” A three-judge panel from the Ninth Court Court of Appeals is expected to issue a final ruling on the Executive Order tomorrow.

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In today’s post, we will discuss how green card holders may be affected by President Trump’s Executive Order imposing a temporary travel ban on foreign nationals of seven Muslim-majority countries (Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen), including green card holders as well as non-immigrants. Since the release of the Executive Order, several courts have issued temporary injunctions preventing green card holders (LPRs), legally authorized to enter the United States, from being detained and/or removed from the United States until a federal court can decide the constitutionality of the orders.

In response to these court orders, the Department of Homeland Security and Customs and Border Protection (CBP) has provided further guidance on the enforcement of these actions, and the impact on green card holders from these seven Muslim-majority countries. While both agencies have indicated that they are complying with the court orders, the consensus is that immigration officials will continue to enforce President Trump’s Executive Orders, and they will continue to remain in place.

What does this mean for green card holders? The Secretary of the Department of Homeland Security has stated that the entry of lawful permanent residents remains in the national interest, therefore “absent receipt of derogatory information indicating a serious threat to public safety and welfare,” lawful permanent resident status will be a deciding factor in allowing an LPR entry. The entry of lawful permanent residents will continue to be discretionary and green card holders will be evaluated on a case-by-case basis.

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Yesterday, January 29, 2017 the Department of Homeland Security released a statement regarding President Trump’s executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” which barred the entry of both immigrant and non-immigrant foreign nationals from 7 majority Muslim countries and suspended entry of Syrian refugees until proper vetting and security mechanisms could be put in place. The Department commented on the impact of a federal court order issued Saturday night which temporarily suspends enforcement of the executive order, until a federal judge can rule on its legality.

In their statement, the Department of Homeland Security noted that “upon issuance of the court order . . . U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders. Concurrently, the Department of Homeland Security continues to work with our partners in the Departments of Justice and State to implement President Trump’s executive order on protecting the nation from foreign terrorist entry into the United States. We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.  We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S. Therefore, we do not anticipate that further individuals traveling by air to the United States will be affected.”

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On Saturday night, a federal judge granted an emergency stay on Donald Trump’s executive orderProtecting the Nation from Terrorist Attacks by Foreign Nationals” which temporarily bans the entry of immigrant and non-immigrant foreign nationals from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen for a 90-day period. The stay filed by the American Civil Liberties Union, on behalf of two Iraqi men detained at New York’s John F. Kennedy airport, prevents immigration authorities from detaining foreign nationals from the 7 Muslim majority countries, who have already arrived on U.S. soil, as well as those mid-flight. The stay does not invalidate the executive order signed by Trump, but limits its enforcement on individuals who have already arrived in the United States. Individuals who have attempted to enter on valid visas, refugee status, or LPR status must be released from detention. Trump’s temporary ban on immigrants and non-immigrants from these countries sent the country into chaos, as protestors swarmed international airports across the nation calling for an end to the ban and the release of persons detained. U.S. Customs and Border Protection, and law enforcement officials are struggling with the executive order, absent clear policy and guidance from the Department of Homeland Security.

This is a developing story. More information soon. 

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The H-1B visa is one of the most coveted visas in the United States for several reasons. One of the biggest perks of the H-1B visa is that it is granted for a period of three years, and can be extended for an additional three years. Recipients of the H-1B visa can also bring their dependents to live with them in the United States on an H-4 visa. The H-1B visa is also a popular option because it gives workers the flexibility of accepting and entering new employment, made possible by the portability provision of the H-1B program (8 U.S.C. § 1184(n)). The portability provision allows an H-1B worker to change jobs without having to risk falling “out of status.” Recently, USCIS also improved its portability provision with the passage of a new law that will give H-1B workers who have been laid off a 60-day grace period to transfer to a new employer. But perhaps the greatest upside to the H-1B visa however, is that it is one of the few visas that allows a nonimmigrant to apply for permanent residency as a beneficiary of an immigrant visa petition, without the immigrant petition having any negative affect on their H-1B status. This privilege is recognized in the law and is known as “dual intent.” Foreign nationals holding a “dual intent” visa such as an H-1B visa are allowed to file a green card petition, while continuing employment under the terms of their visa, and may also travel on their visa without seeking permission from USCIS.

In this sense, the H-1B visa is one of the few visas that opens a direct path to permanent residency. Other popular employment visas such as the E-2 treaty investor visa do not create a direct path to permanent residency and are not considered “dual intent” visas.

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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.

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For years you have 8276375308_d5f2721898_zput your trust in our office for all of your immigration needs and for that we thank you. We consider ourselves very fortunate to be able to serve you and your families. Throughout the years, we have helped thousands of immigrants from all over the world attain their American dream. Learning about their lives and their struggles has

always been an important part of our practice. Although many challenges lie ahead for immigration, we are confident that important changes will come about in the new year. Do not despair and know that our office will be with you every step of the way. We wish you and your families the happiest of holiday seasons.

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In this segment, we answer 5 of your most frequently asked questions received from our social media platforms and website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question in a future segment? Please email nathalie@h1b.biz. For more information on the services we offer please click here.

Immigrating a Foreign Spouse: Incorrect Filing of the I-130

Q: I am currently at an impasse with my wife’s immigration process. We have moved on to the NVC stage of the process, and they have notified us that they will tentatively schedule her for her immigrant visa interview in her home country, although she is currently in the US on an expired visa. Thus-far, her I-130 petition has been approved and they denied the I-129 because of the approval. How can I get the interview location changed to the US without paying for and submitting the I-485?

A: Thank you for your question. More information is needed from you to fully assess your wife’s case such as a complete copy of the I-130 petition that was filed with USCIS. It appears that at the beginning of her case you elected to begin consular processing to immigrate your wife to the United States, and she later traveled to the United States while her I-130 petition was pending with USCIS. As you know, the first step of the consular process to immigrate a foreign spouse, requires you to file the I-130 petition for alien relative. This brings us to the main problem. The I-130 petition is the petition that determines where your wife will be interviewed, whether it be for adjustment of status in the United States, or to obtain an immigrant visa. In other words, the I-130 petition is intimately tied to the location where she will have her interview. On Part C. Item number 22 of the I-130 petition, USCIS specifically asks you to provide complete information regarding whether your relative is in the United States and will apply for adjustment of status, or whether your relative is not in the United States and will instead apply for a visa abroad at an American consular post or embassy abroad. If you responded that your relative was not in the United States and would apply for an immigrant visa abroad at the time of filing, it would be a very rare circumstance that USCIS would allow a change of venue for her interview.

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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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