Visa Lawyer Blog

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Recently, the Federal Register published two new exemptions to the Immigration and Nationality Act on Wednesday by the Departments of Homeland Security and State mean that who provided “insignificant” or “limited” material support for terror groups will no longer be automatically denied eligibility from asylum or refugee status.

An unknown number of people currently in the process of being deported, as well as about 3,000 people with pending asylum cases will be affected by this rules change. It will likely help Syrian refugees who would otherwise be blocked from receiving U.S. aid by the existing rules.
The new exemptions apply to “limited material support.” A DHS spokeswoman reported that the term is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”
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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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By Ekaterina Powell, Esq.

It’s been almost a year since the procedure for Provisional Unlawful Presence Waiver became effective. For all this time, USCIS has routinely denied cases where there was a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence.

Thus, if USCIS believed the applicant may have a criminal, national security, health-related, misrepresentation, or another ground of inadmissibility, it denied the provisional waiver application and did not look further into the extreme hardship analysis.

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By Andrew Desposito, Esq

For many individuals, becoming a United States Permanent Resident and maintaining that status is a pretty simple thing. Simply living and working in the U.S. maintains the status because the purpose of being a Permanent Resident is that your home is in the United States. What happens when maintaining your home becomes an issue that immigration calls into question?

Recently, a client came to our office to help him address this issue that he faced from immigration. Trips into and out of the United States can trigger that issue with Customs and Border Protection (CBP), which can impact one’s ability to stay a Permanent Resident. Our client, who has been a permanent resident for over 25 years, had been charged with being a “Commuter” and therefore not complying with all of the requirements of being a Permanent Resident in the U.S. The reason for his frequent trips down to Mexico for short periods of time were irrelevant as far as the immigration officer was concerned. So long as the client was not returning to his permanent address, the immigration officer was not convinced that our client was maintaining his permanent residence status.

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Like many other immigrants, Mery Martinez has no legal status in the United States, no health insurance and no money. Sadly, Ms. Martinez does have leukemia, and has been struggling to find treatment for the disease, first in New York and more recently in Philadelphia. A hospital emergency room rejected her on New Year’s Day because she had not yet qualified for the state assistance that could have paid for the medical attention she needed.

With rising anxiety, and a rash that she attributed to her illness, Ms. Martinez walked into a clinic last week run by Puentes de Salud, a nonprofit group of doctors, nurses and medical students that provides primary care to Philadelphia’s undocumented, uninsured and impoverished Latino immigrants.

In a consulting room provided by the University of Pennsylvania’s medical school, Ms. Martinez, 38, who is from Honduras, was examined, given a flu shot and advised on how to navigate the health system by Spanish-speaking volunteer doctors and nurses who run the clinic two evenings a week.

Puentes de Salud, which in English means “bridges of health,” was founded to provide low-cost but quality health care and social services to the growing Latino population in South Philadelphia and began treating patients in 2006. A co-founder, Dr. Steve Larson, said the organization distinguished itself from other community-health groups by addressing the underlying causes of illness, like poor nutrition, illiteracy or urban violence.

“It’s not about me writing prescriptions,” said Dr. Larson, 53, a professor of emergency medicine at the University of Pennsylvania who said he began to develop his approach to community medicine while working in rural Nicaragua in the early 1990s. “This is an underground health system.”
While Puentes operates openly in partnership with community organizations, hospitals, universities and governmental institutions, many of the patients — like Ms. Martinez — live in fear of immigration officials.

The new federal health care law does not provide assistance to illegal immigrants, who are generally ineligible for Medicaid, cannot get federal subsidies for private insurance and cannot use the new insurance exchanges to buy unsubsidized insurance with their own money.

Under the federal Affordable Care Act, such immigrants are exempt from the requirement to have insurance. They remain eligible for certain types of emergency care under Medicaid if they have low incomes and meet other criteria, and they may receive care from free and charitable clinics in some places.

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Today, we celebrate the life and legacy of Dr. Martin Luther King, Jr., a man whose dream of equality and human rights changed the course of history. His legacy will be remembered this week by people of all colors and creeds who still believe in the American dream and who continue to fight for equality, civil rights and the basic human dignity they deserve.

In remembering the fight Dr. King made for equal rights among all persons of any race, the similarities of his struggle and the immigration fight are easy to see. Rev. Harvey Clemons, Jr. of the Pleasant Hills Baptist Church is quoted saying, “Immigration is about human dignity and the nobility of parents of different tribes and nations facing the risk of coming to a foreign land, a land of opportunity, to work for a better tomorrow for their children…Dr. King invoked the truth, the truth being that all humans ought to be treated with a certain dignity. It would be natural for us to look to him as an example for fighting for a just cause.”

Similarly, Rev. Al Sharpton, also an outspoken advocate in the fight to end racial profiling, noted that defending civil rights should be an “everybody issue”: “We need to stop comparing disparities and start finding solutions. It is imperative for the African American community to stand together with the Latino community and for the Latino community to stand with the Asian community. You cannot have human rights for some—we need it for all. We must stand together with all our brothers and sisters against this national outrage.”

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A new report from the American Immigration Council explains the journeys of three places—Detroit, Michigan; St. Louis, Missouri; and rural communities in Iowa—to implement strategies for future economic success that depend in part upon immigration. Despite tepid federal efforts at reform, such places are embarking on exciting ventures, such as Global Detroit and the St. Louis Mosaic Project, to attract immigrants to their communities, support new and existing immigrant entrepreneurs, and create synergy between immigrants and native-born citizens. This trend recognizes the growing significance of immigration as an economic factor, but it is also a major rethinking of how individuals and communities accept and welcome newcomers and encourage their successful integration.

Immigrant businesses large and small help to revitalize neighborhoods, add a boost to the local economy, and create more jobs for the local population. Yet, while many cities recognize the need to attract and grow their human capital, their efforts are often at odds with an inefficient federal immigration system. City and regional leaders recognize their recruitment and development efforts cannot fully succeed if the federal immigration system is outmoded and ineffective. In the absence of immigration reform, their efforts, no matter how visionary, may be impeded.

At the national level, policymakers should enact comprehensive immigration reform that modernizes the U.S. immigration system, creating the necessary legal pathways that work for entrepreneurs, innovators, students, families, businesses, employers, and all types of workers. Immigration reform, in addition to recognizing that immigrant entrepreneurs and innovators come through all immigration pathways—family, employment, refugee, and others—should also ensure better recognition of foreign-earned credentials in licensed professions so that skilled immigrants’ talent isn’t wasted in the places in which they already reside.

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By Ekaterina Powell, Esq.

As April 2014 is approaching, we would like to remind our readers to start preparing for H-1B filing. As you may already know, there is a numerical limit on the H-1B visas allotted for each fiscal year. There are 65,000 H-1B visas available with additional 20,000 visas for those with U.S. Master’s degrees. What is important is that visas are not recaptured if H-1B is not approved, thus only 65,000 first filed H-1B petitions will be considered.

April 1 is the first day when you can file a cap-subject H-1B petition. If you do not file on April 1, you risk not getting into the cap. Even though the application is in April, the H-1B employee will not be available to start working for the employer until the beginning of the fiscal year, which is October 1, with the limited exceptions described below.

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By Ekaterina Powell, Esq.

We get a lot of inquiries from entrepreneurs who want to come to the U.S. to engage in their businesses whether they can qualify for H-1B visa. Below is a summary of the current USCIS trends and practical tips in making H-1B for entrepreneurs a success.

Proving Valid Employer-Employee Relationship between Entrepreneur and Business

Over two years ago, USCIS has started its initiative to promote start-up businesses and spur job creation. Since then, USCIS has issued a number of updates describing the opportunities for entrepreneurs and explaining how they can qualify for H-1B and other visas to work in their own businesses.

Specifically, USCIS has clarified that entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to obtain an H-1B visa if they can demonstrate that the company has the independent right to control their employment.

In other words, in order to qualify for H-1B in your own company, you have to show that there is an employer-employee relationship between you and your business, as indicated by the fact that the company has the authority to supervise your work, fire, and otherwise treat you as a regular employee of the company.

When USCIS updated its Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions posted on USCIS website, it gave an example of a sole owner who could qualify for H-1B in his/her own company. USCIS states that the necessary employer-employee relationship can be established if there a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment.

USCIS has also recently created a website “Entrepreneur Pathways” dedicated to explaining the U.S. visa options for H-1B entrepreneurs. The website provides further information on the documentary evidence that can be presented to show a valid employer-employee relationship if the H-1B beneficiary has an ownership stake in the petitioning business.

Aside from showing a Board of Directors that controls your work, you can present evidence of preferred shareholders, investors or other factors establishing that the petitioning company has the right to control the terms of your employment.

As evidence of the right to control your work, you may be able to present the following:
• Term Sheet
• Capitalization Table
• Stock purchase Agreement
• Investor rights Agreement
• Voting Agreement
• Organizational documents and operating agreements/bylaws
In addition to the documents listed as examples, you may submit a combination of any other documents that sufficiently establish that there is a valid employer-employee relationship.
In our experience, we have found that it is also useful to present the documents below to show the right to control the beneficiary’s work:

• Employment Agreement between the petitioner and beneficiary or Employment Offer Letter detailing the terms and conditions of employment and explaining how the employer will exercise its right to control the beneficiary, how often the beneficiary will have to report on the progress of work and to whom, how the beneficiary will be supervised throughout H-1B employment, the extent of the employer’s discretion over when and how long the beneficiary will work, the method of payment, the employer’s role in paying and hiring assistants to be utilized by the beneficiary, the provision of employee benefits, and other relevant considerations;
• A description of the performance review process along with progress and performance evaluations;
• Letters from the directors/investors/preferred shareholders explaining how the right to control the work of the beneficiary will be exercised on a day-to-day basis, who will supervise the beneficiary and evaluate the work product of the beneficiary, and explaining the management structure of the company;
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain;
• Other relevant documents.

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So you hire a lawyer to file your immigration petition and your case gets a Request for Evidence on it. You provide all of the documentation in the request to your lawyer to file with immigration so that your case will be approved, relying on your lawyer’s advice for what documents you need to provide so it will be successful. Unfortunately, your case is denied, but the denial says that immigration never received your Request for Evidence and denied it for failure to respond to it. As a client, this can be both disheartening and confusing since you relied on your lawyer to help get your case approved. What can you do?

Our office had a client come to us with this very situation at hand, wondering what they could do to get their case approved. The consequences would be pretty severe because it was a family petition and the denial could potentially split up a family that recently had a new member born. Understanding the sensitivity of the circumstances, there were a few things we could do while the period of time to file an appeal was open.

The first thing we did was follow up with the Immigration Field Office who had the case on file and issued the denial to see if the case could be reopened on their own motion. For anyone that is unfamiliar with dealing with the Immigration Field Offices, one must generally have an appointment made with them to discuss the case. When faced with a denial of a case, that timeline is more sensitive since the time is limited to file an appeal with USCIS. We were fortunate enough to bring this case to the attention of a supervisor to address our matter, and she provided us the opportunity to bring her the documents on the case. Despite these efforts, we did not hear back from the Immigration Field Office soon enough so that we would not have to file a Motion to Reopen the case. When faced with this whether to file a Motion to Reopen or not, the safest thing to do is to proceed with filing the motion to ensure that right has been probably submitted for the case.

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