NEWSLETTER: October 17, 2016

NEWSLETTER: October 17, 2016

EB-5 IMMIGRANT INVESTOR PROGRAM HAS BEEN RENEWED UNTIL DECEMBER 9, 2016

The EB-5 immigrant investor program, a program that rewards foreign investors who invest $500,000 or $1 million in the United States with green cards, was set to expire on September 30, 2016 and has now been extended until December, 9 2016. This short extension reflects the mounting scandals that the EB-5 industry has seen recently, whereby several proposals were presented to completely reform the program’s structure. This included a reform bill by Republican Bob Goodlatte that proposed, among other things, to extend the program for five years and raise the minimum amount required for investments in a high unemployment area from $500,000 to $800,000, and from $1 million to $1.2 million for projects located in a targeted employment area. Those proposing reforms will have another chance to be heard in the aftermath of the 2016 election.

U.S. SUPREME COURT REFUSES TO REHEAR PRESIDENT OBAMA’S EXECUTIVE ACTION CASE

The U.S. Supreme Court has denied the Obama administration’s request for a rehearing in the case over President Barack Obama’s controversial executive actions on immigration that included programs that would have provided expanded deportation relief to millions. This request came as a result of the 4-4 split decision by the U.S. Supreme Court this past June which thereby upheld the lower court’s block against President Obama’s immigration proposals. The U.S. Department of Justice subsequently asked the Court to rehear the case before a full nine justices by highlighting the need for a definitive decision on the matter. All eyes now return to the lower Texas court whether litigation will resume as the block against the actions was only a preliminary injunction.

AGENCY BACKLOG HAS DELAYED NEARLY A MILLION LEGAL IMMIGRANTS HOPING TO NATURALIZE IN TIME TO VOTE

Throughout the past year almost 940,000 legal immigrants have applied to become American citizens, a 23% surge over the previous year, many of them hoping to take the oath of citizenship in time to cast their first ballots on November 8th. But, as the number of aspiring citizens grew this year, the backlog at the federal agency that approves naturalizations also swelled. After processing citizenship applications on a fast track, the agency is now reporting that it takes up to 7 months to complete the process, which means that many of the immigrants in the backlog will not become citizens in time to vote on November. This backlog could prove crucial in the upcoming election as some of the largest increases in applications came from battleground states including Colorado, Nevada and Florida.

CLINTON PROMISES IMMIGRATION REFORM AT HISPANIC CAUCUS GALA

Democratic presidential candidate Hillary Clinton spoke at the Congressional Hispanic Caucus Institute’s 39th Annual Gala Dinner held in Washington D.C. last month and promised to push for a comprehensive immigration reform through Congress in her first 100 days as president. According to Mrs. Clinton, this reform “will keep families together, and it will include a path to citizenship.” This includes deferring deportation for millions of people in the country illegally by closing private detention facilities and stopping immigration raids and roundups. To get there, Mrs. Clinton stated her “hope(s) to have a Democratic Congress next January.” The promise to push for an immigration reform came not long after Mrs. Clinton drew cheers from the audience for praising Hispanics for their contributions to the United States, and also included an audacious statement that a “comprehensive immigration reform bill will not only be the right thing to do, but it will add $700 billion to our economy.”

BROOKLYN FEDERAL LAWSUIT COULD AFFECT FATE OF MILLIONS OF IMMIGRANTS NATIONWIDE

A New York City resident has sued the federal government in Brooklyn, New York for the United States Citizenship & Immigration Services (USCIS) revoking his work permit after the 2015 ruling by a federal judge in Texas that halted the expansion of President Obama’s Deferred Action for Childhood Arrivals (DACA), which increased the length of work permits for eligible applicants from two to three years. Mr. Batalla Vidal obtained his three-year work permit within a month after the executive order was signed in February 2015, but was shortly thereafter asked by USCIS to return the permit as Texas federal judge Hanen issued an injunction on the executive order. Mr. Batalla Vida is asking the Federal District Court to declare that the Texas injunction “does not apply to New York residents.”

ALL SIX OF THE RECENT NOBEL PRIZE RECIPIENTS IN THE SCIENCES ARE IMMIGRANTS

Six individuals were recently awarded the 2016 Nobel prize in the sciences. All six came to the U.S. as immigrants.

H-1B CLASS ACTION COULD BRING NEEDED TRANSPARENCY TO SELECTION PROCESS

An Oregon federal judge has decided to move forward with a case challenging the lottery process for selecting H-1B visa petitions with a hope to place the entire process under the judicial microscope. H-1B visas are non-immigrant visas that allow U.S. companies to employ foreign workers in specialty professional occupations that require a bachelor’s degree or its U.S. equivalent. Demand is so high for these visas that the United States Citizenship & Immigration Service received more than 236,000 H-1B visa petitions this year. As such, the agency only accepts 65,000 through a “computer-generated” lottery system that lacks any further specifics into its mechanics. This year, only 30% of the total H-1B applicants were approved. The present lawsuit could shed some light on the lottery system as the government will be forced to file response briefs and potentially describe the system in greater detail.

WHITE HOUSE TO INCREASE NUMBER OF REFUGEES TO 110,000 IN 2017

Secretary of State John Kerry has briefed Congress about the administration’s decision to increase the number of refugees accepted into the United States from around the world to at least 110,000 in 2017. This is an increase from the 70,000 refugees the U.S. accepted from 2013-2015 and is consistent with the current administration’s belief that all countries should do more to help vulnerable people. The United States’ refugee policy has been a top campaign issue in the 2016 election as Republican presidential nominee Donald Trump made waves last December when proposing a temporary ban on all Muslims from entering the United States. Meanwhile, Hillary Clinton, the Democratic nominee, has stated her desire to increase the number of Syrian refugees accepted into the U.S. from President Obama’s goal of 10,000 a year to 65,000 refugees.

U.S. SUPREME COURT CHALLENGED WITH GOVERNMENT’S RELIANCE ON STEREOTYPES IN CITIZENSHIP CASES

The U.S. Supreme Court will hear a case that challenges the Immigration and Nationality Act’s (INA) interpretation of whether or not the granting of citizenship to the child of an unmarried parent unconstitutionally holds men to a more stringent standard than women. According to the INA, children of unmarried parents may derive citizenship from their mother provided she is a lawful U.S. citizen and resided in the U.S. for at least one year. However, children may only derive citizenship through their father provided he is a lawful U.S. citizen and resided in the U.S. for more than ten years. The petitioner argues that the INA relies on outdated stereotypes and violates the U.S. Constitution’s Equal Protection Clause by holding men to a different legal standard than women.

U.S. SUPREME COURT TO DECIDE WHETHER “CRIME OF VIOLENCE” IS UNCONSTITUTIONALLY VAGUE

The Supreme Court has decided to hear Lynch v. Dimaya, a case that asks whether part of the “crime of violence” definition, as incorporated into immigration law, is unconstitutionally vague. Whether a violation constitutes a “crime of violence” has a profound effect on an immigrant’s life because crimes of violence that have a sentence of one year or more are deemed aggravated felonies. In turn, a non-citizen that has committed an aggravated felony will be subject to deportation with very few avenues for relief. Several appeals courts in the past year have found the current definition of a crime of violence to be unconstitutionally vague as it is unforeseeable how attenuated the violence of the crime must be in order to receive such classification.

THE BOARD OF IMMIGRATION APPEALS HAS RULED THAT JUDGES CANNOT RULE ON WAIVERS FOR U VISA SEEKERS

The Board of Immigration Appeals has held that only the Department of Homeland Security and the United States Citizenship and Immigration Service (USCIS) has jurisdiction to adjudicate applicants for inadmissibility waivers from U visa petitioners, not Immigration Judges. U visas are reserved for victims of certain crimes that have suffered abuse and have helped law enforcement against the perpetrator(s). However, only those who are admissible for entry into the U.S. or those who have secured a “waiver of inadmissibility” can actually acquire U nonimmigrant status, which can later lead to a green card. As such, the BIA has ruled that judges cannot rule on an applicant’s waiver request.

SENATOR CALLS FOR USCIS PROBE INTO TRUMP MODELING AGENCY

Democratic Senator from California Barbara Boxer has called for an investigation into Trump Model Management amid reports that the company may have failed to obtain proper work visas for many of its foreign models. In her letter to the United States Citizenship and Immigration Services, Senator Boxer has asked for a probe into the company’s employment practices to “make it clear that immigration and labor violations like these will not be tolerated. It is alleged that Trump Model Management may have profited from using foreign models who came to the United States on tourist visas that did not permit them to work.

DEPARTMENT OF LABOR CUTS DOWN ON PAPERWORK IN H-2B CERTIFICATION PROCESS

The United States Department of Labor (DOL) has announced that employers looking to hire temporary guest workers through the H-2B visa program will no longer need to provide extra documents justifying their temporary need during the certification process. The H-2B visa program allows employers to bring in foreign workers for temporary non-agricultural work and is used by industries such as agriculture, hospitality and landscaping.

A SUDDEN SHIFT IN IMMIGRATION POLICY HAS DIVIDED MANY HAITIAN FAMILIES TRYING TO ENTER THE U.S.

Prior to a recent policy change, the United States allowed Haitians without visas to enter the country under a temporary humanitarian parole as a result of the social, economic and political troubles facing Haiti after the devastating 2010 earthquake. But, the Obama administration recently said it was resuming the deportation of Haitians who presented themselves at border crossings without proper immigration documentation. This sudden policy change meant to discourage Haitians from making the grueling trek to the U.S. border, has separated wives from husbands and children from their fathers, stranding men in Mexico after their families were allowed to cross into the United States.

PEOPLE FROM EBOLA-HIT NATIONS TO LOSE TEMPORARY PROTECTED STATUS IN THE U.S.

According to a notice from U.S. Citizenship and Immigration Services, temporary protected status (TPS) for nationals of Guinea, Liberia and Sierra Leone will end next year after noting that these countries are now free of Ebola. TPS designates people to protect from deportation if they come from countries that could be dangerous to return to. The agency conferred this status to Guinea, Liberia and Sierra Leone in 2014 due to the outbreak of Ebola but such nationals will no longer have the protected status as of May 21, 2017.

SYRIAN STUDENTS ON F-1 VISAS WILL BE ABLE TO WORK MORE HOURS AND TAKE FEWER CLASSES THROUGH MARCH 31, 2018

The Department of Homeland Security has announced that Syrian students in lawful F-1 status as of April 3, 2012, who are experiencing severe economic hardship directly caused by the ongoing Syrian conflict will be able to work extra hours and take a reduced course load through March 31, 2018. This creates an exemption for those enrolled in an institution certified by the Student and Exchange Visitor Program which includes graduate and undergraduate studies, as well as students in elementary, middle and high school.

ADVISORY ALERT

1. The U.S. Consulate in Vancouver, Canada will now accept applications by third country nationals applying for their first H-1B visa, even if it is based on a university degree issued outside of the U.S. or Canada.

2. Clients arriving from abroad seeking admission with valid visas, particularly those returning to the United States after recent prior visits, have been reporting hostile encounters at Newark International Airport. Customs and Border Protection officers have often accused them of working illegally in the United States.

SAMPLING OF RECENT NAWLAW ACCOMPLISHMENTS

    • H-1B approval for an Indian national working as a Systems Engineer
    • H-1B approval for a French national working as a 3rd grade French Teacher
    • H-1B approval for an Irish national working as a Health Educator
    • H-1B approval for a Venezuelan national working as a Senior Software Architect
    • H-1B approval for an Irish national working as a Project Manager
    • H-1B approval for a Chinese national working as an Accountant
    • H-1B approval for an Indian national working as a Market Research Analyst
    • H-1B approval for an Indian national working as a Programmer Analyst
    • H-1B extension approval for an Indian national working as an Accounting Consultant
    • H-1B extension approval for an Indian national working as Management Consultant
    • H-1B extention approval for a South Korean national working as an Associate at an investing advisory business
    • E-2 renewal for an Italian national working as a General Manager
    • L-1A approval for an Indian national working as a Director of Engineering
    • J-1 approval for a UK national working as a Business and Financial Consultant Trainee
    • J-1 approval for a UK national working as a Real Estate Marketing Management Trainee
    • TN-1 extension approval for a Canadian national working as an Economist
    • O-1 approval for a U.K. national working as a Creative Director, Consultant and Creative Strategist for Films, Presentations, and Marketing for Creative Industries, Business and Policital Campaigns
    • PERM (Labor Certification) approved for an Indian national working as a Systems Analyst
    • PERM (Labor Certification) approved for an Indian national working as a Managing Director
    • STEM OPT extension approved for an Indian national working as a Computer Software Developer
    • I-140 Immigrant petition approved for Senior Cost Estimator from India
    • I-140 Immigrant petition approved for Hospitality Business Manager from the Republic of Korea

RECENT CLIENT QUERIES

  1. Italian national who recently received her green card asks if there is anything more she is required to do such as return to her home country and request a special stamp? Ans. No, the physical green card which is valid for a period of 10 years should be presented when you return to the U.S. from a trip abroad – however, you should note that U.S. regulations provide that you not remain outside of the U.S. for more than 6 months at a time unless you obtain a re-entry permit which will enable you to remain outside for up to 2 years. Also, you should file form AR-11 with United States Citizenship and Immigration Service if you change your address.
  2. H-1B visa holder asks if his current H-1B compensation will affect his potential consideration for an EB-5 investment? Ans. No.
  3. E-2 visa applicant from Latin America asks if his relative, currently in the U.S. on an L-1 visa, is permitted to be an officer or director of his newly formed U.S. company? Ans. Yes, as long as the L-1 visa holder is not actually employed by the U.S. company, he can serve as an officer, director or even be a shareholder.
  4. Foreign national exploring a potential E-2 visa asks if it is permissible to share space with another company? Ans. Yes, this is feasible. The requirements for office space tend to be somewhat discretionary on the part of the U.S. Consular officers in terms of what they deem reasonable for a particular type of business. Generally speaking, a home office is not deemed sufficient.
  5. Many foreign nationals have asked whether the upcoming election will affect the current adjudications by USCIS? Ans. No, we have not observed any changes with respect to the adjudication of both immigrant (green card) and non-immigrant visa applications.
  6. Swedish national currently in the U.S. as a visitor asks if she can apply for health/travel insurance? Ans. Yes.
  7. Client asks whether the fact that his wife’s O-3 visa stamp is in a passport that has now expired make the O-3 visa invalid? Ans. The U.S. visa remains valid even if the passport has expired. However, you must retain and present this passport when seeking entry to the U.S.
  8. Foreign national from China currently on an H-1B visa who is considering migrating to another company asks how long the United States Citizenship & Immigration Services gives him to find a new position if he resigns from his current position? Ans. There is no formal grace period associated with a resignation situation but, in the past, USCIS has been willing to give foreign nationals up to 30 days. Yet, in other cases, USCIS has in fact questioned gaps in status

CLIENT TESTIMONIALS

Testimonial from a Mexican national upon an O-1 visa extension approval: “Thank you so much for doing everything so fast, you always put it together and get great results, really appreciate it! You all make an amazing team!

Testimonial from a French national upon obtaining a diversity green card lottery approval after an initial denial just prior to the Sept. 30th deadline: “I would like to thank you for all the work and time that you invested on my case. You’ve done an excellent work. Congratulations.”

Testimonial from an Indian national upon an O-1 approval: “Thank you so much for your help. I will make sure i recommend every person I know for immigration help to you guys.”

Testimonial from a Italian national upon an EB-1 extraordinary ability visa approval as a Stylist: “Thank you everyone for the amazing job!”