Visa Lawyer Blog

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With some of Speaker of the House John Boehner’s recent statements regarding immigration reform, we are reminded of what many have worked hard to try and accomplish within the immigration system. There are many goals and hopes that people have for 2014. Some of these goals and hopes include:

– A decrease in deportations of people who overstay or are not here legally and have spouses and children in the U.S. so they may not be torn apart from their families.

– Passing immigration reform so there is a process in place to help those who have no status in the U.S. get on the road to eventually achieving their dreams of becoming U.S. citizens.

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After years of waiting, the California Supreme Court finally made a decision that allows undocumented immigrants to be admitted to the State Bar. Sergio Garcia passed the California State Bar Exam on his first try in 2009, but when his application to be admitted to the bar was denied, it was the beginning of a long battle that has ultimately ended in his favor.

The California’s Supreme Court ruled Thursday that no state law or public policy should stop Garcia or others like him from obtaining a law license in the state. Immigration officials would be unlikely to pursue sanctions against an undocumented immigrant who had been living in the United States for years, had been educated in this country and whose sole unlawful conduct was his presence in this country, the court said in a unanimous ruling written by Chief Justice Tani Cantil-Sakauye.

“Under these circumstances, we conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar,” the court ruled.

Sergio Garcia’s case is unique because, while it is admitted that he is an undocumented alien in the U.S., he has an approved immigrant visa petition filed by his father back in 1995. Unfortunately, after 19 years of waiting so far, a green card is still unavailable to him. The California Supreme Court’s ruling said, “Because the current backlog of persons of Mexican origin who are seeking immigrant visas is so large, as of the date of this opinion — more than 19 years after Garcia’s visa petition was filed — a visa number still has not become available for Garcia,”
The matter ended up in the California state court system, and Garcia earned the support of California Attorney General Kamala Harris, who wrote in a 2012 brief: “Admitting Garcia to the bar would be consistent with state and federal policy that encourages immigrants, both documented and undocumented, to contribute to society.”

The state bar argued that Garcia had met all of California’s requirements for a law license.

“With today’s ruling, the California Supreme Court reaffirms the Committee of Bar Examiners’ finding as not a political decision but rather one grounded in the law,” California State Bar President Luis J. Rodriguez said in a written statement Thursday.

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As we celebrate the Holidays and gather with our families we must think of the good things in our life.

As we look around the world today – at the conflicts, the destruction of the environment, the human and animal suffering – it almost seems absurd to say that our wish is for a more peaceful, healthier and happier world. Yet this is the world we all yearn for. And I find that with the image of such a world in my mind and in my heart, it is easier to take action, every day, to move things in the right direction.

So let’s wish for a world where all people are treated with dignity, respect and equality – no matter who you are or who you love.

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Unlike regular Social Security, which is a contributory insurance plan based on how long people worked and how much they made before retirement, S.S.I. is a welfare program for all citizens or resident immigrants who meet certain requirements of age, income or disability.

The number of elderly immigrants enrolled in the program has increased fivefold over the last 12 years. Now, more than a quarter of immigrants over 65 — and in some immigrant populations, almost half — receive S.S.I., at an annual cost of $2 billion.

By comparison, less than 10 percent of elderly United States citizens are in the program.

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Back in November, USCIS issued a policy memorandum to amend the USCIS Adjudicator’s Field Manuel to ensure consistent adjudication of parole requests made on behalf of certain military family members. The policy is intended to ease the stress and anxiety palced upon military service members and veterans that is caused by the lack of immigration status of their close family members in the U.S.

To be eligible for parole in place, it is a discretionary action under the Immigration Nationality Act. The parole memo states that an individual who is a spouse, child, or parent of an active duty member of the U.S. Armed Forces, Selected Reserve of the Ready Reserve, or veteran who previously served in the armed forces or reserves “weighs heavily in favor of parole in place.” The memo further notes that “absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.” As of the date of this memo, it is unclear what type of criminal conviction or “other serious adverse factor” would prevent USCIS from favorably exercising discretion.

The eligibility for adjustment of status is available if the only barrier to adjustment was the lack of inspection and amission or parole. The memo is clear” “an alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds…” Therefore, once USCIS grants parole in place, the provision in the INA that requires the applicant be “inspected, admitted or paroled” is satisfied. However, the individual must still satisfy all of the other requirements for adjustment of status, including maintenance of status under the code, if he or she is not an immediate relative or the provisions of the INA do not apply. It is also important to note that parole in place eliminates only those grounds of inadmissibility found in INA 212(a)(6)(A)(i) for purposes of adjustment of status and that all other grounds of inadmissibility must still be overcome.

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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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Nelson Mandela, South Africa’s first Black president and the symbol of the anti-apartheid movement has passed away. Through untiring and ever vigilant efforts, Mandela would work through the hardest circumstances, including 27 years in prison to see apartheid end in South Africa. Because of his work, Mandela was a Nobel Peace Prize recipient and elected as his country’s first Black President.

Nelson Mandela represents the virtues of those who work tireless to bring equality and justice to his country. He is quoted as saying “People tend to measure themselves by external accomplishments, but jail allows a person to focus on internal ones; such as honesty, sincerity, simplicity, humility, generosity and an absence of variety,” These values continued to show through his work fighting against apartheid in jail and the changes he tried implementing when he became president of his country.

What we can take from Nelson Mandela’s passing is that these virtues are important for accomplishing important changes in government and in society. The immigration reform movement stands for the kind of change that is necessary to benefit all Americans. The impact immigration has on our lives and in our communities is the kind of change that Mandela would strive for because of how many people and communities are affected by the changes that are truly needed. Let us follow Mandela’s example and continue to implore, to speak out, and to actively call on our government to pass immigration reform that Americans have been asking for.

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By Ekaterina Powell, Esq.

As H-1B season is about to begin and companies across the U.S. are preparing for the H-1B recruitment period, we would like to remind our readers about the employment terms specific to H-1B candidates.

H-1B nonimmigrants are a great way for many employers to supplement their workforce when there is a shortage of qualified American workers. H-1B program can be an alternative to outsourcing when the shortage of labor exists. The H-1B visa allows foreign nationals to enter the U.S. temporarily for an initial term of three years to engage in professional occupations. Hiring an H-1B nonimmigrant is not an easy task. Apart from the tedious visa process, employers spend considerable time and resources in screening candidates, lengthy international telephone interviews, arranging for relocation of the candidates, training, etc. Sometimes however, after all these efforts in trying to bring the workforce into the U.S., today’s competitive marketplace serves as a tough reality for these employers as some of the H-1B nonimmigrants choose to leave the employers shortly after entering the U.S. in search for better opportunities.

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Until 2011, the National Interest Waiver (NIW) category had been limited to persons holding advanced degrees or persons of extraordinary ability in the arts, sciences, or business whose work was in the national interest. In 2011, the NIW category was expanded to allow entrepreneurs to pursue a green card based on demonstrating the business and their services within that business being in the national interest.

Recently, our firm succeeded in approving an entrepreneur as someone whose work was in the national interest because their exceptional abilities as an individual and the business’ substantial prospective benefit to the U.S. warranted approval for their case. The entrepreneur’s business was in the field of private security, focusing on providing security to American interests in countries where terrorism and insurgents threaten our interests abroad. By demonstrating that the business is focused on fighting against organizations such as Al-Qaeda, the national interest is served by showing how the welfare of the U.S. is protected by the company’s services.

When it came to the entrepreneur’s exceptional abilities, a six factor test is used to determine if the entrepreneur qualifies for his services being in the national interest. Of those six factors, only three must be met. The six factors are: (1) a degree, diploma, certificate, or similar award from a college, university, or other institution of learning related to the area of exceptional ability; (2) letter/s from current and/or former employer/s establishing that the beneficiary possesses at least ten years of full-time experience in the occupation for which s/he is being sought; (3) a license to practice the profession or certification for a particular profession or occupation; (4) evidence that the beneficiary has commanded a salary, or other remuneration, which demonstrates exceptional ability; (5) membership in professional associations; or (6) recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

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If one recalls the earthquake from back in 2010 that hit Haiti, USCIS provided some relief options for Haitians affected by the earthquake, whether it was those currently living in Haiti or Haitians still in the United States. Recently, USCIS issued a statement regarding immigration relief options for Filipinos affected by Typhoon Haiyan. USCIS understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status in the United States. Therefore, Filipino nationals impacted by Typhoon Haiyan may be eligible to benefit from the following immigration relief measures:

Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;

Extension of certain grants of parole made by USCIS;

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