Articles Posted in Green Card/Perm. Residence

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visa mapThe new president issued three executive orders (EOs) in January 2017 regarding immigration. The most recent of the three, EO 13769, is the most well-known. Descriptions range from a “travel ban” to a “Muslim ban,” depending on who is describing the order. The EO, which bars entry to the U.S. from seven countries with majority-Muslim populations, is currently subject to a temporary restraining order, and multiple court challenges are pending in courts around the country. New Jersey’s Newark Liberty International Airport saw a considerable amount of confusion after the issuance of the EO, when federal agents attempted to enforce the order without clear guidelines. All we can offer is a very general overview of the EOs, since their impact—and even their legal validity—remains uncertain.

The first order, EO 13767, is entitled “Border Security and Immigration Enforcement Improvements.” 82 Fed. Reg. 8793 (Jan. 25, 2017). It directs immigration officials to increase patrols and deportations in response to an alleged “recent surge of illegal immigration at the southern border with Mexico.” Id. at 8793. It also makes “the immediate construction of a physical wall on the southern border” the official policy of the federal government. Id.

EO 13768 is entitled “Enhancing Public Safety in the Interior of the United States.” 82 Fed. Reg. 8799 (Jan. 25, 2017). It primarily sets enforcement priorities with regard to deportations. The order also addresses so-called “sanctuary jurisdictions,” which it defines as non-federal governments that “willfully refuse to comply with” a statute regarding communication between local and federal law enforcement. Id. at 8801, 8 U.S.C. § 1373. The federal government is probably limited, however, in its authority to require local governments to participate in immigration enforcement, an area of exclusively federal jurisdiction under the Constitution. See, e.g. Printz v. United States, 521 U.S. 898 (1997); South Dakota v. Dole, 483 U.S. 203 (1987).

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FirmBee [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration is a critical component of the American economy, with employers constantly petitioning to bring employees here from abroad for particular jobs. This is especially true, for a variety of reasons, in the STEM fields (Science, Technology, Engineering, and Mathematics). Several studies released in the past few months demonstrate the extent of immigrant involvement in the economy, particularly in business startups. Immigrant founders now account for more than one-fourth of all new startups, as well as over half of startups valued at $1 billion or more. Immigrants also make up a significant portion of New Jersey entrepreneurs. Several methods of immigration are available for aspiring U.S. entrepreneurs.

The type of visa most commonly associated with the high-tech field is the H-1B visa. This is a nonimmigrant visa, meaning that it is officially only available to people who do not intend to remain in the U.S. permanently. An employer must petition for the visa on behalf of an employee. Federal law caps the total annual number of visas at 65,000, plus another 20,000 for people with advanced degrees. U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for fiscal year 2016 on April 1, 2015, and it reported that the number of petitions received exceeded the annual cap six days later. For a total of 85,000 available visas, the agency reported receiving almost 233,000 petitions.

The H-1B visa is valid for three years, and it may be extended for another three years. Various provisions allow an H-1B visa holder to change jobs, or to extend their stay if they are working toward seeking permanent residence, but the overall purpose of the visa is a temporary stay. It is therefore far from ideal for someone who wants to start a new business. Employment-based (EB) immigrant visas allow a person to come to the U.S. for a job with the intention of adjusting status to that of a permanent resident. EB immigration also requires a petition filed by an employer, and it is subject to annual numerical limits. Unlike H-1B visas, however, they are far less subject to backlogs.

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US_Embassy_in_Kabul_on_July_4th_2010.jpgConsular officers, who work for the U.S. Department of State (DOS), have a considerable amount of discretion regarding issuance of immigrant visas to relatives of U.S. citizens. If a consular officer refuses to issue a visa, the doctrine of “consular nonreviewability” has generally held that neither the immigrant nor the relative may challenge that decision in court. The U.S. Supreme Court has agreed to hear a case in which a U.S. citizen is challenging a consular officer’s decision, claiming that the officer infringed on her constitutional rights. Kerry v. Din, No. 13-1402.

The Supreme Court has held that immigration to the United States is not a right but a “privilege granted by the sovereign United States Government.” United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Consular officers interview prospective immigrants prior to issuing a visa, in part to determine whether they are inadmissible to the United States under 8 U.S.C. § 1182. One of the questions presented to the Supreme Court in Din is whether a petitioner may compel the government to present specific statutory and evidentiary support for a consular officer’s decision.

In the Din case, a U.S. citizen petitioned for an immigrant visa for her husband, a national of Afghanistan. He had worked for the Afghan Ministry of Social Welfare as a payroll clerk from about 1992 to 2003. This included the time period from 1996 to 2001 when the Taliban controlled most of the country. USCIS approved the petition, and DOS scheduled the husband for an interview at the U.S. Embassy in Islamabad, Pakistan. The interview took place on September 9, 2008. After about nine months, the petitioner received a notice from DOS that the visa had been denied, and that the husband was not subject to a waiver of ineligibility. The Embassy informed them that the visa was denied due to “terrorist activities,” 8 U.S.C. § 1182(a)(3)(B), and that it could not provide any additional information, id. at §§ 1182(b)(2) – (3).
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NYS-Notary-Seal.jpgImmigration law in the United States can be complicated and confusing for anyone, especially someone who might not speak English as their first language. In today’s environment of possible immigration reform, unscrupulous individuals are holding themselves out as immigration-service providers, offering assistance with visa petitions and green card applications. People who pay them for their services, however, rarely if ever see any benefit. Government agencies, from the Federal Trade Commission (FTC) to city officials, are pursuing and prosecuting alleged immigration-services scammers, and seeking to educate the public about their rights.

In order to provide immigration services to the public, a person must be a licensed attorney or have accreditation from the Board of Immigration Appeals (BIA). U.S. Citizenship and Immigration Services (USCIS) offers an overview of common scams targeting immigrants. Some scammers pose as USCIS officials on the telephone in order to obtain personal information for identity theft, or to demand payment to fix non-existent immigration problems. Similar scams may use email or social media instead of the telephone. Local businesses and websites may purport to offer assistance with immigration petitions and applications, despite having no legal authority to do so.

A common scam that targets immigrants from Latin American countries involves the use of the title Notario Público. In the Spanish-speaking world, a notary public performs many of the same functions as an attorney, possibly including immigration assistance. A notary public in the U.S., however, is not authorized to provide legal services (unless they are also an attorney). The FTC obtained a judgment against a Baltimore company that targeted Spanish-speaking individuals from El Salvador and Honduras and charged them a fee for immigration services that were rarely fulfilled. FTC v. Loma Int’l Business Group, No. 1:11-cv-01483, mem. order (D. Md., Mar. 24, 2014).
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file0001366447736.jpgAn indictment filed by the U.S. Department of Justice (DOJ) charges a New Jersey couple, who are famous for their roles on the Bravo program “The Real Housewives of New Jersey,” with multiple fraud-related offenses. United States v. Giudice, No. 2:13-cr-00495, indictment (D.N.J., Jul. 29, 2013). “Real Housewife” Teresa Giudice and her husband, Giuseppe “Joe” Giudice, are accused of defrauding multiple banks and mortgage lenders and committing fraud during a bankruptcy case. The husband is also charged with failing to file federal income tax returns for four years. Both defendants have pleaded not guilty, but the case may have further consequences for Mr. Giudice, who is reportedly not a U.S. citizen, but rather a citizen of Italy. A conviction for a fraud-related offense could result in his removal from the country, commonly known as deportation. The case highlights the sometimes tenuous grasp that immigrants have on their right to remain in this country, something that all immigrants, their families, and their employers should understand.

According to the DOJ’s indictment, the Giudices fraudulently obtained millions of dollars in loans, including mortgage and construction loans, between 2001 and 2008. They achieved this, the DOJ claims, by submitting fraudulent or falsified documents, such as tax returns and W-2 forms, which showed income or bank balances that did not exist. The indictment also alleges that the couple, during a bankruptcy case filed in 2009, concealed assets from the bankruptcy court and the trustee, and made false statements to the court and the trustee. Finally, the indictment accuses Mr. Giudice of failing to file federal income tax returns, despite allegedly having taxable income, for the calendar years 2004 through 2008. The indictment lists thirty-nine total counts, including bank fraud, loan application fraud, and bankruptcy fraud.

Federal immigration law identifies a range of criminal offenses for which a conviction would make an immigrant, including a lawful permanent resident, deportable. A conviction for a single count of a “crime of moral turpitude” can result in deportation, provided that the conviction occur within five years of the immigrant’s admission to the U.S., and that the underlying crime carry a possible sentence of one year or more. 8 U.S.C. § 1227(a)(2)(A)(i). If an immigrant has more than one conviction for offenses involving moral turpitude, however, the government may seek to deport them no matter when the convictions occur. 8 U.S.C. § 1227(a)(2)(A)(ii).
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file1001282444781.jpgCongress first enacted the controversial Defense of Marriage Act, or “DOMA,” in 1996. The law stated, in part, that the federal government would only recognize marriages between a man and a woman. While state law governs most aspects of family law, DOMA has had a profound effect on a wide range of federal rights and benefits, including the right of a U.S. citizen or permanent resident to petition on behalf of a spouse for an immigrant visa. Even if a marriage was legal at the state level, DOMA prevented the federal government from approving immigrant visa petitions for same-sex couples. A U.S. Supreme Court decision in June 2013, however, struck down the relevant section of DOMA, opening the doors to as many as 25,000 binational same-sex couples who previously had no access to immigration benefits. For one couple in New York City, the impact was immediate and profound, stopping a deportation proceeding in its tracks.

Section 3 of DOMA changed the definitions of “marriage” and “spouse” in all federal statutes and regulations to specifically refer to opposite-sex marriage. Pub. L. No. 104-199 § 3, 110 Stat. 2419, codified at 1 U.S.C. § 7. This affected countless federal programs, including immigrant visa petitions for spouses of U.S. citizens. Federal immigration law does not limit the number of immigrant visas issued to U.S. citizens’ spouses annually, but DOMA excluded people who were legally married, under state law, to U.S. citizens of the same sex. This left some same-sex spouses facing deportation because of a lack of legal options.
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file0001498740806.jpgThe EB-5 visa, also known as the immigrant investor visa, allows immigrant entrepreneurs and investors to come to the U.S. if they meet certain criteria related to the amount of their investments and the number of jobs they can create for American workers. While the processing time for EB-5 visa petitions is less than many other types of visas, it can still take months that the prospective immigrant, not to mention the immigrant’s business venture and the American workers who need jobs, would prefer to spend getting the business started. Federal law gives preference to EB-5 visa petitions affiliated with an approved Immigrant Investor Regional Center, and U.S. Citizenship and Immigration Services (USCIS) has developed criteria for expediting certain Regional Center-affiliated petitions.

Wait Time for EB-5 Petitions

The U.S. State Department’s Visa Bulletin for May 2013 states that the government is current on processing EB-5 petitions, but the process can still take months, if not longer. An immigrant seeking admission the the U.S. with an EB-5 visa must embark on numerous time-sensitive undertakings, including the formation of or investment in a commercial enterprise with a stake of up to $1 million, and the creation of at least ten full-time jobs for authorized U.S. workers.

Regional Center Priority

Regional Centers are third-party businesses, which may be public or private, approved by USCIS to assist EB-5 visa petitioners. A Regional Center may, in exchange for an administrative fee, handle aspects of the investment for the visa petitioner, particularly job creation. Congress created a pilot program in 1992 that established a priority for EB-5 petitions affiliated with a Regional Center by guaranteeing a fixed number of visas set aside each year. Pub. L. 102-395 § 610.
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file0001066192156.jpgU.S. Citizenship and Immigration Services (USCIS), as part of a general effort to consolidate its policies and procedures, has issued a draft memorandum for the EB-5 investor visa, which allows immigrant investors and entrepreneurs to obtain green cards if they meet certain benchmarks. The new memorandum does not necessarily change existing policies or procedures related to the EB-5 program, but rather collects the existing policies and procedures in a single document.

Beginning in November 2011, USCIS Director Alejandro Mayorkas called on the agency to “improv[e] its administration of the…EB-5 program.” In a memo dated November 9, 2011, he announced reforms to the EB-5 adjudication process, including the addition of “economists with business analysis expertise” to augment the EB-5 adjudicators and a consulting firm to improve adjudication efficiency. The final step of the the process, he announced in that memo, is consolidation of the EB-5 policies into a “single overarching agency policy memorandum.” The recently released memorandum represents that final step.
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Senate_in_session.jpgA proposal issued on January 28, 2013 by a group of eight U.S. senators, entitled the “Bipartisan Framework for Comprehensive Immigration Reform” (the “Framework”) offers an outline of at least two possible new forms of employment-based immigration. One method would apply to immigrants with advanced technical degrees, and the other would allow lower-skilled workers in industries like agriculture to come to the U.S. to work, with the number of visas adjusted based on economic conditions. The proposed green card programs are very ambitious, and the Framework provides no specific details about whether some of their features would even be feasible.

Bipartisan Framework for Comprehensive Immigration Reform

Eight senators, including Democrats Charles Schumer of New York and Robert Menendez of New Jersey, issued the Framework as part of a broad national discussion on immigration reform. The Framework identifies four “legislative pillars”: 1. allowing undocumented immigrants in the U.S. to gain citizenship while improving border security, 2. immigration reforms that strengthen American families and the economy, 3. improved verification of employment eligibility, and 4. employment-based immigration that meets the needs of America’s workforce and protects workers. The Framework’s proposals for the second and fourth pillars include recommendations for employment-based green cards.

STEM Green Cards

One proposal would create a new category of green card for immigrants who obtain advanced degrees in the fields of science, technology, engineering, or mathematics (STEM) from American universities. A bill that would have created such a green card category died in the Senate late last year, based on objections to the bill’s elimination of the entire diversity visa program. Some sort of reform in this area is necessary, as research suggests that the U.S. is facing a shortfall in workers with STEM degrees. According to a May 2012 report from the Partnership for a New American Economy and the Partnership for New York City, the growth of the U.S. workforce has slowed to under one percent, and the country could face a shortfall of 230,000 STEM-educated workers by 2018.
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245333_3375.jpgThe U.S. Department of State (DOS) released its Visa Bulletin for August 2012 on July 31, listing the priority dates for family- and employment-based immigrant visas. These are the visas for people intending to immigrate to the United States and obtain legal permanent residence. The Visa Bulletin provides important information for people who are awaiting a decision on an immigration petition that is subject to an annual quota. Certain immigrant visa petitions, such as U.S. citizens petitioning for an immigrant spouse or minor child, are not subject to a numerical limitation, so they are not included in the monthly Visa Bulletin.

The two major types of immigrant visas listed in the Visa Bulletin are family-based petitions subject to a quota and employment-based petitions. Once a petitioner, typically a U.S. citizen relative, permanent resident family member, or prospective employer, files a petition, the immigrant, known as the “beneficiary,” receives a “priority date.” This indicates the date the government accepted the petition. Different types of petitions receive different preferences from DOS and U.S. Citizenship and Immigration Services (USCIS). Immigration law also restricts the number of visas available from any particular country in a given year. As a result, the waiting periods, indicated by the priority date, vary depending on the type of petition and, in some cases, the immigrant’s country of origin.
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