Visa Lawyer Blog

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Great News for Arts groups coming to perform in the US. U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision addressing the term “culturally unique” and its significance in the adjudication of P petitions for performing artists and entertainers.

The P visa was created to provide opportunities for aliens primarily performing as a group and not individually to tour in the US. The P visa, like the O1 visa, was also created by the Immigration and Nationality Act of 1990. In addition to covering performing and fine artists, the P1 also covers athletes.

It is important to make clear that the O1 visa (aliens of extraordinary ability) enables individuals to enter and work in their field of specialty, the P visa does not allow individuals to work unless they meet the criteria set in the law. This having been said P visa applicants do not have to have reached the pinnacle of their careers like O1 visa applicants, but P visa applicants do need to be nationally, or internationally known. For example, the group may have performed in other countries, or tour their own country and known to the community appreciating their artistic endeavors.

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In an effort to keep more and more students with science and technology backgrounds in the U.S., DHS has added more science, technology, engineering, and math designated degree programs to the list of qualifying student visa extensions.

The recently added STEM designated-degree programs include pharmaceutical sciences, econometrics and quantitative economics. These programs qualify eligible graduates on student visas for an optional practical training (OPT) extension. Generally, OPT allows eligible international students to remain in the United States for up to 12 months while they gain work experience and receive training related to their programs of study. This is great for a student wanting to gain valuable experience in their field while allowing a company a chance to see if this person would be a good fit and worth sponsoring on another work visa.

For students who graduate with a STEM designated degree, they can remain for an additional 17 months on an OPT STEM extension. A student may be eligible for the 17-Month OPT STEM extension under the following circumstances:

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Sen. Marco Rubio (R-Fla.) aims to have his alternative to the DREAM Act proposal on paper in the next few weeks and passed by the end of the summer. “Our goal is to pass something this summer in time for kids who plan to go to school this fall,” Rubio press secretary Alex Conant said Monday. Rubio’s proposal would provide non-immigrant visas to illegal immigrants’ children who attend college or serve in the military.

“So just like lots of people come to the United States on work visas or on student visas or tourism visas or whatever, this would be a non-immigrant visa, so it would be a temporary one,” Conant said. “It wouldn’t be permanent. But the intent here is if they choose to remain in the United States permanently that they could apply for permanent residence just like any other immigrant would.”

Rubio’s proposal is an alternative to the Democrat-backed DREAM Act, sponsored by Sen. Dick Durbin (D-Ill.), which would grant legal status to illegal immigrants who came to the U.S. when they were young and then go to college or serve in the military. Conant said Rubio’s legislation would not mean the immigrants would be deported after their visa runs out.

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Another attestation to our flawed immigration system, this time the end of a great visa program that was abused to the point of disgrace.

The J-1 Summer Work and Travel program, which allows college students to visit for up to four months, is one of the State Department’s most popular visas. Participation has boomed from about 20,000 in 1996 to a peak of more than 150,000 in 2008.

The visas are issued year-round, since students come from both hemispheres on their summer breaks. They work all over the country, at theme parks in Florida and California, fish factories in Alaska and upscale ski destinations in Colorado and Montana. The influx has been especially overwhelming for some resort towns.

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Filing for a Green Card after arriving to the US on a Fiance Visa is a very confusing topic for many Immigrants. Once the fiancé(e) has entered the United States he/she must get married within 90 days of the fiancé(e)’s arrival in the United States. Once the marriage takes place the Petitioner must file Form I-485 Adjustment of Status with United States Citizenship and Immigration Services (USCIS) office.

Recent case law, provide some guidance on particular issues affecting the Adjustment of Status of certain applicants. On March 17, 2011, the BIA issued Matter of Sesay, in which it concluded that there is no requirement that a K-1 fiancé(e)’s marriage to the I-129F petitioner remain intact in order for the K-1 to adjust status.

On June 23, 2011, the BIA issued Matter of Le, in which it cited Sesay and ruled that there is no requirement that a K-2 remain under 21 years of age in order for the K-2 to adjust status.

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We really enjoy seeing cases where individuals who have done everything right are able to succeed in being granted their citizenship. In Naturalization cases, it can be difficult to get an approval if the government decides to fight even one minor part of the record. This recent decision by a U.S. District Court highlights the struggle between an individual and USCIS when the government chooses to carry on the fight with its determination that you should not receive citizenship.

The U.S. District Court for the Northern District of California ruled on March 21, 2012, that Plaintiff Mirsad Hajro was eligible for naturalization. The decision follows a May 27, 2011 order by the court denying a summary judgment motion by the government. USCIS originally denied Mr. Hajro’s Form N-400, alleging that the Mr. Hajro gave false testimony with the intent to obtain an immigration benefit, and thus lacked the good moral character required for naturalization.

The facts in question concerned information provided by Mr. Hajro during an interview for his naturalization. Mr. Hajro had served in the Bosnian military and a question arose asking if he had been in possession of any firearms during his time in the military. The court found that the Mr. Hajro did not provide false testimony on either his I-485 or N-400 applications, noting that, in the instances where Mr. Hajro’s responses were deficient, he provided reasonable, credible explanations for the omissions. It also found that Mr. Hajro consistently volunteered information to USCIS to enable it to make its decision. As a result, the court held that the plaintiff was a person of good moral character during the relevant three-year period, and was eligible for naturalization.

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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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