Articles Posted in Immigration Visas

Published on:

Adoption SymbolThe federal Immigration and Nationality Act (INA) gives several specific and distinct meanings to the word “child.” A person petitioning for an immigrant visa for their child must establish that the intended beneficiary meets a statutory definition of “child.” In cases of adoption, this can be complicated. The Board of Immigration Appeals (BIA) ruled on an adoptive parent’s appeal of a rejected visa petition. It found that, although the adoption occurred after the statutory cut-off date, the adoption decree’s retroactive effect placed the beneficiary within the INA’s definition of a “child.” Matter of Huang, Int. Dec. #3844, 26 I&N Dec. 627 (BIA 2015).

The “immediate relatives” of a U.S. citizen, including children, are not subject to any numerical limitation under the INA. 8 U.S.C. § 1151(b)(2)(A)(i). The INA defines “child,” in part, as “a child adopted while under the age of sixteen years.” Id. at § 1101(b)(1)(E)(i). Immigration regulations state that “the child must have been under 16 years of age when the adoption is finalized.” 8 C.F.R. § 204.2(d)(2)(vii)(C). Neither the statute nor the regulation defines “finalized.” This has led to confusion in cases in which the adoption process began before the child turned 16 but was not completed until after their 16th birthday.

The BIA gave the “sixteen years old” provision a “literal interpretation” in Matter of Cariaga, 15 I&N Dec. 716, 717 (BIA 1976). The petitioner in that case filed adoption paperwork after the beneficiary turned 18. The court, however, made the adoption decree retroactive to 12 years earlier, when the beneficiary was about six years old. The BIA held that this did not meet the INA’s definition. It affirmed its literal reading of the statute in Matter of Drigo, 18 I&N Dec. 223 (BIA 1982).

Continue Reading

Published on:

Pulaski SkywayA ruling from the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) establishes new eligibility criteria for “national interest waivers” (NIWs). Matter of Dhanasar, Int. Dec. No. 3882, 26 I&N Dec. 884 (AAO 2016). The NIW is a type of employment-based immigrant visa petition in the second preference (EB-2) category. Normally, a petition for an EB-2 immigrant visa must include an employment offer and a labor certification from the Department of Labor. The NIW waives those requirements. USCIS had relied on the decision in Matter of N.Y. State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), to determine eligibility for NIWs. The decision in Dhanasar overturns NYSDOT and establishes a more consistent standard.

EB-2 visas are available to individuals “who are members of the professions holding advanced degrees” or who have “exceptional ability in the sciences, arts, or business.” 8 U.S.C. § 1153(b)(2)(A). According to the statute, the individual’s exceptional ability must have the potential to “substantially benefit” the nation. Id. The individual must have an offer from an employer in the U.S., and they must obtain a labor certification, which basically shows that hiring an immigrant will not adversely affect U.S. workers. 8 C.F.R. § 204.5(k)(4)(i); 20 C.F.R. §§ 656.17(h)-(i).

USCIS is authorized by statute to waive the job offer and labor certification requirement by issuing an NIW, if doing so would “be in the national interest.” 8 U.S.C. § 1153(b)(2)(B)(i), 8 C.F.R. § 204.5(k)(4)(ii). The NYSDOT decision established a three-part test that required a prospective immigrant to establish (1) that there is “substantial intrinsic merit” in their field of employment, (2) that the likely benefits of their work will be “national in scope,” and (3) that requiring a labor certification would “adversely affect[]…the national interest.” Dhanasar, 26 I&N Dec. at 887, quoting NYSDOT, 22 I&N Dec. at 217.

Continue Reading

Published on:

currencyImmigration has become a particularly controversial political topic over the past year or two, but immigrants form a critical part of our culture and our economy. Recent reports have further confirmed immigrants’ economic impact, both in New Jersey and nationwide. New Jersey is currently suffering a net population decline, as residents move elsewhere. Immigrants are making up for some of that loss. They are also starting new businesses at a considerable rate, which helps local economies and the state as a whole. Numerous immigration programs play a role in this, such as the EB-5 investor visa program and the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. While the forthcoming change in the White House is bringing significant uncertainty for immigrants, it is worth noting immigration’s economic benefits.

Congress established the EB-5 Immigrant Investor Program to encourage investment, entrepreneurship, and job creation. It is available to immigrants who intend to invest a minimum amount in a “new commercial enterprise” in the U.S., which will create a minimum number of new jobs for U.S. citizens or permanent residents. 8 U.S.C. § 1153(b)(5). According to the December 2016 Visa Bulletin, the processing of EB-5 visa petitions is current for everyone except individuals from mainland China.

At least 3,000 EB-5 visas each fiscal year must be for new commercial enterprises in “targeted employment areas” (TEAs), defined as either a “rural area” or an area with at least 150 percent of the national average unemployment rate. Id. at § 1153(b)(5)(B). The minimum investment amount to qualify for an EB-5 visa is currently $1 million. 8 C.F.R. § 204.6(f)(1). For a TEA, the minimum investment is $500,000. Id. at § 204.6(f)(2). The investment must create at least 10 full-time jobs for “qualifying employees.” Id. at § 204.6(j)(4). A report issued by the U.S. Government Accountability Office (GAO) in September 2016 found that a substantial majority of recent EB-5 petitioners intended to invest in TEAs.

Continue Reading

Published on:

Department of LaborBefore an employer in the U.S. can hire a worker from abroad for a job here, the employer must petition for a visa for the worker. This requires a labor certification from the Department of Labor (DOL). The employer must establish that it is in compliance with U.S. labor law regarding the employment of someone from outside the country. In a recent case, a DOL certifying officer (CO) denied a request for certification on the basis that the job posting disadvantaged U.S. workers. The DOL’s Board of Alien Labor Certification Appeals (BALCA) reversed the CO’s decision. In re Cosmos Foundation, Inc., No. 2012-PER-01637, dec. order (BALCA, Aug. 4, 2016).

Permanent labor certifications are required for employment-based immigrant visas, through which an immigrant employee can come to the U.S. with the intention of staying permanently. The main purpose of a labor certification is to demonstrate that no qualified U.S. workers are available to fill a position, and hiring someone from abroad will not negatively affect wages for workers here. A similar process, known as the labor condition application, applies to petitions for temporary visas, such as the H-1B visa program. The Program Electronic Review Management (PERM) system, an electronic application system established by the DOL in 2005, is supposed to enable the DOL to process an application in 60 days or fewer.

DOL regulations impose numerous requirements for labor certifications. The Cosmos case involved an alleged defect in the way the employer advertised the position. If an employer places a job advertisement in a newspaper or professional journal before applying for a labor certification, the advertisement must describe the job in terms that are “specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 20 C.F.R. § 656.17(f)(3).

Continue Reading

Published on:

world mapFederal immigration law allows U.S. employers to petition for an immigrant visa for a current or prospective employee, and citizens or lawful permanent residents may do so for a family member. The length of time it takes for the government to approve an immigrant visa petition mainly depends on two factors:  the type of visa sought and the prospective immigrant’s country of origin. Most family- and employment-based visas are subject to annual numerical limitations. Federal law also imposes an annual cap on the number of numerically limited visas available to citizens of any one country. A bill currently pending in the U.S. Congress, H.R. 213, or the Fairness for High-Skilled Immigrants Act of 2015, would eliminate or increase the limits placed on each country. The bill likely has little to no chance of passing during the current Congressional session, but it offers a useful look at this particular system of numerical caps.

Some prospective immigrants are not subject to any numerical limitation, such as “immediate relatives” of U.S. citizens. 8 U.S.C. § 1151(b). All other prospective immigrants are subject to annual caps of up to 480,000 family-based and 140,000 employment-based immigrants. Id. at §§ 1151(c), (d). These immigrants are assigned to employment- and family-based immigrant visa categories, based on either the type of job involved or the petitioner’s own status and the immigrant’s relationship to the petitioner. 8 U.S.C. § 1153. In addition to these annual caps, the total number of visas given to citizens or nationals of any one country in a fiscal year cannot exceed seven percent of the total number of authorized visas. 8 U.S.C. § 1152(a)(2). For dependencies of a foreign country, the limit is two percent. Id.

This per-country numerical limit largely affects nationals of some countries more than others. The monthly Visa Bulletin issued by the U.S. Department of State, which indicates how long beneficiaries of each type of immigrant visas petition may expect to wait, illustrates the disparate impact on countries with a high volume of petitions. The Visa Bulletin shows the priority dates for each immigrant visa category that are currently being processed by the government. A petition’s “priority date” is roughly equivalent to its filing date. The Visa Bulletin further distinguishes between petitions received from China, India, Mexico, the Philippines, and all other countries. According to the August 2016 Visa Bulletin, the current priority date for the “F1” family visa category for most countries is May 22, 2009, a waiting period of just over seven years. For the Philippines, however, the priority date is March 22, 2005. For Mexico, it is March 8, 1995.

Continue Reading

Published on:

dogThe process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa Integrity and Security Act (VISA) of 2016, would affect how petitions are submitted, the extent of Department of Homeland Security (DHS) background checks, and the burden of proof to establish visa eligibility. H.R. 5253, the Strong Visa Integrity Secures America Act (SVISAA), would modify procedures for vetting visa applicants and for sharing information within DHS and between DHS and the Department of State (DOS).

U.S. immigration law provides for two broad categories of visas. An immigrant visa allows a person to come to the U.S. with the intention of remaining permanently, usually after qualifying through a family member or an employer. Someone who comes to the U.S. on an immigrant visa often applies to adjust their status to lawful permanent residence, also known as a “green card.” Once they have been in the U.S. long enough, they might be able to become a naturalized U.S. citizen. By contrast, a nonimmigrant visa allows a person to come to the U.S. temporarily for a specific purpose. A B-1 tourist visa, for example, allows a person to visit the U.S. but not to work, while an H-1B visa allows a person to hold a job in the U.S. while the visa remains valid. Nonimmigrant visa holders who remain in the U.S. after their visa expires are said to be “overstaying” their visa.

A person petitioning for a visa typically files the petition with U.S. Citizenship and Immigration Services (USCIS), which is part of DHS. A prospective immigrant located outside the U.S., however, has to go through a U.S. consulate in the country where they are located. The U.S. consulates are part of DOS.

Continue Reading

Published on:

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.

Continue Reading

Published on:

klimkin [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayTitle 8 of the United States Code, which deals with immigration and nationality, defines multiple grounds for inadmissibility, by which the federal government may deny a prospective immigrant entry to the U.S., and deportability, by which it may remove an immigrant from the country. Drug abuse and drug addiction, even without a criminal conviction, are considered grounds for both inadmissibility and deportability. This has been the case since Congress passed the Immigration and Nationality Act of 1952. See Castaneda de Esper v. INS, 557 F.2d 79, 82 (6th Cir. 1977). As a report published by Vice several months ago notes, this can be difficult to enforce, since it relies on an immigrant’s honesty on immigration forms, or an inadvertent admission, such as through medical records.

U.S. courts have generally held that drug addiction does not, in and of itself, mitigate criminal liability for drug-related offenses, although some judges have expressed concern about criminalizing mere drug possession when addiction is involved. See, e.g., United States v. Moore, 486 F.2d 1139, 1243 (D.C. Cir. 1973) (Wright, J.; Bazelon, C.J.; Tamm, J.; Robinson, J.; dissenting) (“[I]in determining responsibility for crime, the law assumes ‘free will’ and then recognizes known deviations ‘where there is a broad consensus that free will does not exist’ with respect to the particular condition at issue.”) Federal authorities in immigration cases have a lower burden of proof than in criminal cases, so this principle would certainly seem to apply in decisions regarding inadmissibility and deportability.

Drug abuse and addiction are considered health-related grounds for inadmissibility. 8 U.S.C. § 1182(a)(1)(A)(iv). Federal law allows waivers for other health-related grounds, i.e., subsections (a)(1)(A)(i) through (iii), under 8 U.S.C. § 1182(g). Subsection (iv) is conspicuously absent from that list. For example, a prospective immigrant without a vaccination record for certain illnesses, who would be inadmissible under § 1182(a)(1)(A)(ii), may obtain a waiver by demonstrating that they have received a vaccination, that a vaccination would not be “medically appropriate,” or that it would go against their “religious beliefs or moral convictions.” 8 U.S.C. § 1182(g)(2). The only waiver that might be available for all health-related grounds, including subsection (iv), applies to victims of human trafficking and individuals involved in trafficking investigations. 8 U.S.C. §§ 1101(a)(15)(T), 1182(d)(13)(B)(i).

Continue Reading

Published on:

By A. Coeffler [Public domain], via Wikimedia CommonsImmigrant visas are available to certain family members of U.S. citizens and lawful permanent residents, as well as investors, employees, and prospective employees of American businesses. Recent announcements from federal immigration authorities and others have brought changes to immigrant visa procedures, as well as the potential for additional changes in the future. One recent change affects all immigrant visa categories, while others specifically apply to the EB-5 program for immigrant investors.

Procedural Changes at USCIS

In September 2015, U.S. Citizenship and Immigration Services (USCIS) announced new procedures for determining the availability of immigrant visas. Previously, visa bulletins issued by the U.S. Department of State (DOS) identified “final action dates” for each immigrant visa category. This date represents the priority date for immigrant visa petitions that the government is currently processing.

Many employment-based categories are current, but low-priority family-based applications can have distressingly long backlogs. According to the November 2015 visa bulletin, the government is now processing applicants from the Philippines in the fourth preference group—siblings of adult U.S. citizens—with priority dates in June 1992.

Continue Reading

Published on:

By ISAF Headquarters Public Affairs Office from Kabul, Afghanistan (110329-A-5634G-004) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsThe U.S. Supreme Court, in an extremely divided opinion, ruled that the federal government did not violate a U.S. citizen’s constitutional rights by denying her husband an immigrant visa and refusing to tell her why. Kerry v. Din, 576 U.S. ___ (2015). Justice Scalia’s plurality opinion was only joined by two other Justices, Chief Justice Roberts and Justice Thomas. Justice Kennedy filed a concurring opinion with Justice Alito, and the remaining justices joined a dissenting opinion written by Justice Breyer. The court ruled that the plaintiff does not have a “constitutional right to live in the United States with her spouse,” Din, slip op. at 1, a conclusion the dissenting justices strongly disputed.

The plaintiff married her husband, an Afghan national, in 2006, and she filed a visa petition for him soon afterwards. U.S. Citizenship and Immigration Services (USCIS) approved the petition, but several months after her husband’s visa interview at the U.S. Embassy in Islamabad, Pakistan, she received notice that the State Department was denying the visa application. It merely cited “terrorist activities” as the reason, stating that it could not tell her anything further. 8 U.S.C. §§ 1182(a)(3)(B), (b)(2)-(3).

The husband worked as a payroll clerk for the government of Afghanistan from 1992 to 2003. The Taliban controlled most of Afghanistan from 1996 to 2001. This might have been the basis for the State Department’s “terrorism” conclusion, although the Taliban is not on the State Department’s list of Foreign Terrorist Organizations. The legal definition of “terrorism” is extremely vague, broad, and circular. Federal immigration law’s definition of “engaging in terrorist activity” includes acts that “afford[] material support” to terrorists. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). See also 18 U.S.C. §§ 2339A, 2339B.

Continue Reading