Visa Lawyer Blog

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Over the next few days many articles with a look back on the year’s biggest immigration stories will be published. If you look through the articles I bet you will see one thing in common: illegal immigration issues dominated the entire 2012 just like they did in 2011. Will we see some signs of reform in 2013, too early to know.

A few more stories we selected that we would like to add as the highlights of 2012:

1. How U.S. Open Immigration Policy Made It the Country to Beat in the Summer Olympics

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Did you know that forty percent of Fortune 500 companies in the United States were started by immigrants or the children of immigrants. From 1995 to 2005, half of Silicon Valley startups had an immigrant founder and in 2005 alone those businesses did $52 billion in sales creating more than 400,000 jobs. Iconic American companies that built whole new industries like US Steel, Dupont, Google, eBay, Honeywell, and Intel were started by immigrant founders. Chobani Yogurt, founded in 2005 by the immigrant entrepreneur Hamdi Ulukaya in upstate New York, has created 1,500 American jobs.

Just as we find common ground that unites families and protects communities, so too should we ensure that the world’s most talented innovators and entrepreneurs who are educated in our great universities are able to stay and contribute, rather than be forced to set up competitor businesses abroad. Many end up leaving because our visa options for self employed founders are limited.

Foreign Start Up founders often struggle with visa options to stay and launch a company in the US. The options are limited, if your country is part of a US Investment treaty, one can apply for the E2 visa and start a small company by investing some money. If you have a million dollars, you could also invest in your business, and could apply for the EB5 Immigrant Visa. But what if you don’t have money, and your country is not a member of the E2 treaty? Well until recently you were out of luck.

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A Green Card is not for ever. Once a person obtains Permanent Residency there are rules to follow in order to keep that Green Card. The AILA DC Chapter offers this pointer to provide a brief overview on this topic.

U.S. Customs and Border Protection’s (CBP) treatment of lawful permanent residents (LPRs) who leave the United States for long periods of time, yet return once every six months, has been of long-standing concern to many. There is a common misunderstanding that simply returning to the United States once every six months will preclude a finding that one has abandoned his or her lawful permanent residency.

Whether an LPR has abandoned permanent residency, however, is not based solely upon the length of time spent outside of the U.S. In fact, during an October 20, 2011 meeting with the D.C. Chapter’s CBP Liaison Committee, Baltimore (BWI) CBP representatives confirmed that “CBP officers are less focused on the length of time abroad and more on where does the person actually live.”

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The day has finally arrived!! Effective Dec. 5, 2012, applicants in Mexico may no longer file Form I-601, Application for Waiver of Grounds of Inadmissibility at the USCIS Ciudad Juarez Field Office or any associated Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Applicants in Mexico must now file Form I-601 and associated Form I-212 with the USCIS Phoenix Lockbox.

On June 4, 2012, USCIS adopted a comprehensive change to the Form I-601 filing process for waiver applicants located outside the United States requiring that waiver filers located abroad file their waiver application with the USCIS Phoenix Lockbox. For the first 6 months of this change, through Dec. 4, 2012, USCIS made an exception allowing Form I-601 waiver applicants located in Mexico the option of filing their Form I-601 applications and any associated Forms I-212, with the USCIS Ciudad Juarez Field Office or with the USCIS Phoenix Lockbox. This exception expired on December 4, 2012.

This announcement does not affect Form I-601 filings that may be eligible for processing by a USCIS international office due to exceptional and compelling humanitarian reasons or Form I-601 filings with the Havana Field Office for waiver applicants in Cuba.

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Nearly 102,965 young undocumented immigrants have been granted temporary permission to live and work in the United States, according to statistics released recent from U.S. Citizenship and Immigration Services (USCIS). Total number of applications received is 367,903. Nationals of Mexico are leading the list with 258,708 applicants.

An estimated 1.7 million undocumented immigrants nationwide could potentially be eligible for the program, according to the Migration Policy Institute.

We will keep you posted with new numbers in 2013.

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Canadians have unique procedural options to apply for admission in a status that authorizes employment. The different procedural options primarily are for L‐1 intracompany transferees and TN professional workers.

Intracompany Transferees L1 Visa:

Under the North American Free Trade Agreement (NAFTA), citizens of Canada are authorized to present a petition for L‐1 classification concurrently with an application for admission to the United States. Customs and Border Protection (CBP) officers are authorized to adjudicate such L petitions.

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Do you want to become a US Citizen? Foreign nationals who wish to become citizens of the United States may do so through the naturalization process. Citizenship confers many advantages — the right to vote, protection from the government, access to certain jobs and benefits, and the option to hold public office.

A great tip from AILA regarding the timing of filing is provided here:

INA § 334 permits a naturalization applicant to file a Form N-400, Application for Naturalization, up to 3 months before the date the applicant would first meet the 5-year or 3-year continuous residence requirement. See INA §§ 316(a), 319(a); 8 C.F.R. §334.2(b). While the application can be filed within this 3 month time period, the applicant cannot be naturalized until he or she has met the 5-year or 3-year continuous residence requirement, in addition to meeting the other statutory requirements for naturalization. See INA §§ 316, 319.

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Just a week ago, on November 30, 2012, USCIS adopted new filing policies and procedures regarding the exceptions for permitting filing Form I-601 (Application for Waiver of Grounds of Inadmissibility) and any associated Form I-212 (Application for Permission to Reapply for Admission into the United States After Deportation or Removal) at international USCIS offices. These new exceptions apply to all USCIS offices.

This new policy is a modification to the original filing process adopted by USCIS on June 4, 2012, which requires waiver applicants located outside the United States to file their Form I-601 and Associated Form I-212 with a USCIS Lockbox for adjudication by the Nebraska Service Center (NSC). The original filing process also requires that applicants in Mexico who filed Forms I-601 and associated Forms I-212 by December 4, 2012, waiver applicants in Mexico had the option of filing their applications either with the USCIS Lockbox or with the USCIS Ciudad Juarez Field Office.

Any applicants in Mexico who file Forms I-601 and associated Forms I-212 after December 4, 2012, must file with a USCIS Lockbox for adjudication.

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On December 3, 2012, USCIS Director Alejandro Mayorkas held a public engagement on the EB-5 Immigrant Investor Program. Director Mayorkas provided updates on creation of the separate office for administration of EB-5 Immigrant Investor program.

The EB-5 program has spurred the creation of tens of thousands of new jobs and the injection of billions of dollars into the U.S. economy since Congress created the program in 1990. Interest in the EB-5 program has grown exponentially in recent years, both from domestic project developers seeking capital and foreign investors who have the capital that can fuel economic growth. In the recent years, EB-5 immigrant investor program has grown a lot.

In the fiscal year 2012, USCIS approved more than triple the number of petitions approved in Fiscal Year 2009. USCIS has met the unprecedented growth and interest with a corresponding dedication of resources.

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Clients and our Blog visitors often ask me about Waivers. What is a waiver, is it a form of punishment, will it cure any Immigration violation? Certain violations of Immigration Law will make the applicant eligible for a waiver.

The most common violation is unlawful presence, and there is a waiver for this violation.

The statute, itself, defines unlawful presence as an individual who is “present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” Additionally, the inadmissibility bar only applies to those individuals who have been in the United States and accrued unlawful presence after April 1, 1997. For purposes of INA §212(a)(9)(B)(i), unlawful presence is calculated for any unauthorized time during a single stay in the United States. Thus, if a person accrues 179 days of unlawful presence (one day short of the 180-day threshold) and departs the United States only to later reenter the United States and accrue an additional 179 days of unlawful presence, the person is not subject to the three-year bar.

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