Visa Lawyer Blog

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To qualify for a national interest waiver (NIW) pursuant to INA §203(b)(2)(B)(ii), a physician must commit to working for a total of five years as a full-time clinical physician either at a facility operated by the Veteran’s Administration or in an HHS-designated Medically Underserved Area (MUA)/Health Professional Shortage Area (HPSA). The following are some tips and information on NIW adjudications.

* Requirement for a Five Year Employment Contract. In a 2007 policy memorandum, USCIS confirmed that the NIW petition may be filed at any time before, after or during the five year commitment period and that the five year commitment need not be completed within any specific period of time. However, the regulations still require the submission of a five year employment contract with the NIW petition filing.

This can present challenges for physicians who may have completed some or all of the qualifying five years of employment before filing the NIW petition. Common sense would indicate that the length of the employment contract need only be five years if the physician had not already completed part of the commitment prior to filing the petition. The literal language of the regulation requires “a full-time employment contract for the required period of clinical medical practice, or an employment commitment letter from a VA facility.”

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Recently USCIS provided EB-5 statistics provided for a stakeholder engagement meetig, including information on service-wide receipts, approvals, and denials of I-526s and I-829s; the number of approved EB5 Regional Centers by fiscal year.

The statistics reveal an increase across the board in all EB-5 related filings including I-924 applications for both initial regional center designation as well as amendments to existing regional centers. Individuals also filed the highest level of I-526, EB-5 Immigrant Investor Petitions and I-829, Petitions to Remove Conditions to date.

The Immigrant Investor Program, also known as “EB-5,” was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by immigrant investors by creating a new commercial enterprise or investing in a troubled business. There are 10,000 EB-5 immigrant visas available annually. In 1992 and regularly reauthorized since then, 3,000 EB-5 visas are also set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

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Fewer undocumented immigrants stopped for traffic violations will face deportation, under newly unveiled changes to a prominent immigration enforcement program.

Known as Secure Communities, the program compels state and local law enforcement officers to enter the fingerprints of anyone they detain into a federal database. Federal immigration officials can cross-reference those fingerprints and initiate deportation proceedings if the detained person is in the country illegally.

The result: many undocumented immigrants being deported over minor breaches like broken tail lights and speeding. The number of deportations stemming from a traffic stop increased sharply last year, amplifying immigration advocates’ critique that the Obama administration is failing in its stated goal of targeting immigrants who have criminal records or could undermine public safety.

A task force convened by Department of Homeland Security Secretary Janet Napolitano and comprised of law enforcement officials, immigration attorneys and immigration enforcement union representatives, among others, recently issued a report detailing how critics of Secure Communities believe it is breaking apart families and breeding distrust of law enforcement.

“Many state and local officials believed they were joining a program targeting serious offenders” by participating in Secure Communities, the report’s authors wrote, but the impact of Secure Communities has not been limited to convicted criminals, dangerous and violent offenders, or threats to public safety and national security.”
In response to the report, the Department of Homeland Security announced changes to how officials will handle immigrants detained at traffic stops. The reform affects immigrants without any prior criminal record. Federal agents will only request that local officers hold immigrants arrested at traffic stops if those immigrants are subsequently convicted. The change will not apply to immigrants stopped for drunk driving. This change is more in line with the DHS memo concerning prosecutorial discretion over cases of low immigration offenders.

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On February 22, 2012, USCIS held an Information Summit on its recently instituted Entrepreneurs in Residence (EIR) initiative. This past week, USCIS released an Executive Summary on the Information Summit. Several principle themes were addressed at the summit, which the EIR Tactical team will work on addressing in the months to come.

Demonstrating the Legitimacy of Startups through Investments

USCIS acknowledged that many of the unique characteristics of startups and small businesses are also traditional indicators of fraud or ineligibility and asked stakeholders for input on what evidentiary criteria could help USCIS evaluate the legitimacy of startups. Several stakeholders commented that researching the investors of a startup venture can provide reliable information on the startup’s legitimacy. An investor will not invest if he or she doubts the founders and their organization. One stakeholder suggested creating a database of accredited investors to provide reliable information to USCIS. Other stakeholders recognized that it is easy to conduct a background check on domestic investors, but that it can be very difficult to conduct checks on foreign entrepreneurs who provide their own equity. When discussing the
subject of investors, stakeholders asked USCIS to provide further guidance as to how much equity the entrepreneur can own in the enterprise.

Understanding the Organizational Structure of a Startup

USCIS acknowledged that it is less familiar with the organizational structure of a startup than traditional large businesses. Several participants offered several common features of a startup enterprise, and suggested that USCIS could benefit from visiting the work locations of startups and other small business ventures. Several participants noted that a lack of office space had raised concern in their adjudications process. These participants explained that many startups are run out of more informal spaces such as a coffee shop or a living room, and that a lack of office space should not raise immediate concerns of illegitimacy. One participant explained that a startup company should be easily located on an internet search engine, and that internet searches were a reliable way to prove a small business venture’s legitimacy. Another participant explained that the roles and titles in a startup are more fluid. A startup can often lack the features of a big business such as a CEO and a board of directors, and one stakeholder explained that these features are often not established until funding is obtained. Participants emphasized that partnerships with big companies are easier to document than organizational structure. One participant reflected that most early stage companies do not create an organizational chart until USCIS asks for one. Another participant asked USCIS to provide information on how to structure small businesses and startups, and that venture capitalists and entrepreneurs will try and work within these standards.

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The U.S. Supreme Court heard oral arguments on Arizona v. United States today. This case concerns Arizona S.B. 1070, and in particular, the four parts that have had immigrants and many others in an uproar.

Most of the oral arguments today concerned the part of the law requiring state officials to check immigration status in some circumstances. Several justices said states were entitled to enact such provisions, which make mandatory inquiries to federal authorities from local police officers that are already commonplace.

Chief Justice Roberts said the state law merely requires that the federal government be informed of immigration violations and leaves enforcement decisions to it. “It seems to me that the federal government just doesn’t want to know who is here illegally or not,” he said.

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The largest wave of immigration in history from a single country to the United States has come to a standstill. After four decades that brought 12 million current immigrants—more than half of whom came illegally—the net migration flow from Mexico to the United States has stopped—and may have reversed, according to a new analysis by the Pew Hispanic Center of multiple government data sets from both countries.

The standstill appears to be the result of many factors, including the weakened U.S. job and housing construction markets, heightened border enforcement, a rise in deportations, the growing dangers associated with illegal border crossings, the long-term decline in Mexico’s birth rates and changing economic conditions in Mexico.

The report is based on the Center’s analysis of data from five different Mexican government sources and four U.S. government sources. The Mexican data come from the Mexican Decennial Censuses (Censos de Población y Vivienda), the Mexican Population Counts (Conteos de Población y Vivienda), the National Survey of Demographic Dynamics (Encuesta Nacional de la Dinámica Demográfica or ENADID), the National Survey of Occupation and Employment (Encuesta Nacional de Ocupación y Empleo or ENOE), and the Survey on Migration at the Northern Border of Mexico (Encuesta sobre Migración en la Frontera Norte de México or EMIF-Norte). The U.S. data come from the 2010 Census, the American Community Survey, the Current Population Survey and the U.S. Department of Homeland Security.

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In an effort to decrease waiting times at our port of entries, U.S. Customs and Border Protection Office of Field Operations (CBP) has recently enacted a pilot program at the International Bridge at the Sault Ste Marie port of entry. The hope of this program is to bring vehicles to the inspection booths in less time.

“Effficacy in movement is paramount to this project’s success. We are always trying to improve the flow of legitimate traffic while enforcing the laws of the United States,” said Patrick Wilson, CBP Sault Ste. Marie Assistant Director.

The Sault Ste. Marie port of entry has a unique design that separates commercial traffic from car traffic, creating an upper and lower plaza. The focus of this project will be on the upper plaza only and will not affect the flow of traffic on the lower plaza.

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This is a recent update. The State Department announced that the annual limit in the EB-2 category for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. This is the “additional corrective action” that was forecast as a possibility in Section D of the May 2012 Visa Bulletin.

USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. However, requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

Visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established. USCIS will continue to accept applications for adjustment of status for aliens with priority dates prior to the date established in the April 2012 Visa Bulletin. Those cases with priority dates of August 15, 2007, or later, will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012 as we explained above.

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A special Immigration and Customs Enforcement (ICE) program announced last August to reduce the massive backlog of pending matters by identifying those that could be dismissed or put on hold has resulted in the closure of 2,609 cases, according to government data covering the period up to the end of March. The backlog reduction is less than one percent of the 298,173 cases pending before the Immigration Courts as of the end of last September.

“Prosecutorial discretion” is the authority of an agency or officer to decide what charges to bring and how to pursue each case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. The authority to exercise discretion in deciding when to prosecute and when not to prosecute based on a priority system has long been recognized as a critical part of U.S. law. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts.

The stated goal of the ICE program was to better prioritize and reduce the backup of pending matters that had led to lengthy delays in the proceedings of noncitizens it wanted to deport. So far, however, the pace of these closures has not been sufficient to stop the growth in the court’s backlog. In fact, as of the end of March 2012, the Immigration Court backlog had risen to 305,556 matters.

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I have been saying for many years that the visa system is unfair for foreign artists. Take the story of Seny Daffe. Daffe was granted a visa that allows culturally unique artists entry to the U.S. In Burlington, he joined the African dance company Jeh Kulu, where he taught drumming. He held dance classes and ran workshops at local schools. He performed with the National Ballet of Guinea and performed at First Night events across the state.

In November, Daffe returned to Conakry, Guinea, to visit his family and brush up on his skills. But when he tried to come back to Vermont, he learned that he was now barred by State Department officials from returning to the U.S.

Daffe says the State Department told him that his ties to this country were too strong – his ties to his own country too weak. The question was whether he intended to eventually return to Guinea. This is a common reason for denials.

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