NEWSLETTER: September 2, 2016

NEWSLETTER: September 2, 2016

DONALD TRUMP WAIVERS ON IMMIGRATION PLAN

The Republican presidential nominee attempted to clarify his hardline approach to illegal immigration during a nationally televised speech in Phoenix on August 31, 2016. Although Mr. Trump re-iterated his proposal to build a wall, immediately deport criminal aliens, triple the number of deportation officers, repeal President Obama’s executive orders that have temporarily protected undocumented immigrants, and halt issuing visas to countries that might endanger U.S. national security, he seemingly backed off from his previous pledge to forcibly remove 11 million immigrants who are currently in the United States illegally. This came following much criticism from both Democrats and Republicans regarding his wavering stance on immigration and after a meeting in Mexico with President Enrique Peña Nieto where Mr. Trump stated that he regarded Mexican-Americans as “spectacular, hard-working people.”

NEW PROPOSED RULE COULD ALLOW STARTUP FOUNDERS TO STAY IN THE U.S.

The United States Citizenship and Immigration Services (USCIS) has recently issued a proposed rule that would allow immigrant startup founders to receive temporary permission to be in the country, otherwise known as “parole,” which could set the stage for a new potential way for entrepreneurs to build companies in the United States. Under the proposed rule, the U.S. Department of Homeland Security would be able to grant parole to entrepreneurs who have at least a 15 percent ownership stake in a startup, and have an “active and central role in it. The startup would also need to have been established in the U.S. in the last three years, and the startup should have demonstrated potential for fast growth and creating jobs. USCIS also stated that entrepreneurs could receive an initial stay period of two years, with requests for “re-parole” which could be for another three years, provided that the startup maintained a “significant public benefit” as shown by an increase in investment, money or jobs.

TEXAS INJUNCTION ON PRESIDENT OBAMA’S EXECUTIVE ACTION IS CHALLENGED ONCE AGAIN

As recently reported, a recent tie in the Supreme Court has left in place a 2015 Texas judge’s injunction against President Obama’s immigration Executive Actions introduced in November 2014, for deferred action of parents of U.S. citizens or lawful permanent resident children (DAPA) who were born prior to November 2014, as well as an expansion of deferred action for childhood arrivals (DACA) from two to three years. Nevertheless, there has been a new challenge to the injunction by a DACA recipient from Mexico after his deferred deportation and work authorization periods were reduced to two (2) years from the three (3) year period that had been granted to him in accordance with President Obama’s Executive Action. Mr. Martin Batalla’s complaint asks the federal court in New York to find that the injunction in Texas v. United States does not actually apply to New York residents such as himself because it was unlawfully broad and entered without jurisdiction since New York was not a party to the Texas case. If successful, this new lawsuit could reinstate both DAPA and DACA’s expansion in states that were not parties to Texas v. United States and provide relief for millions of families. We will continue to keep you informed about the status of this case.

DEPARTMENT OF HOMELAND SECURITY EXPANDS PROVISIONAL WAIVERS FOR IMMIGRANTS

More undocumented immigrants will be able to seek a provisional waiver of unlawful presence from inside the U.S. prior to leaving the country to apply for a green card. Immigrants who enter the U.S. unlawfully must generally leave the country to apply for a green card if they become eligible for one. But, the Immigration and Nationality Act bars those immigrants from re-entering the U.S. legally for 3 to 10 years, depending on how long they were in unlawful status in the United States. Under regular procedures these immigrants can apply for a waiver of those bars if they would result in extreme hardship to a U.S. citizen spouse or parent – but only after departing the United States. This final rule, which became effective on August 29, 2016, allows immigrants who are eligible for any type of visa (family or employment-based) and who can demonstrate extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent, to seek the waiver of unlawful presence from within the United States. This rule allows individuals to apply for a waiver within the U.S. even if the United States Citizenship and Immigration Services (USCIS) has reason to believe the applicant may be inadmissible for a reason other than unlawful presence.

DEPARTMENT OF JUSTICE REQUESTS A REHEARING OF OBAMA’S EXECUTIVE ACTIONS

The U.S. Department of Justice (the “DOJ”) has asked the U.S. Supreme Court for a rehearing before nine justices in the case over President Barack Obama’s controversial executive actions on immigration, highlighting the need for a definitive decision on the matter instead of the non-precedential 4-4 split reached by the high court in June. Obama’s blocked initiatives would expand the Deferred Action for Childhood Arrivals program for immigrants who entered the U.S. as children and would create a similar program for certain immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents. In its rehearing petition, the DOJ emphasized the need for a precedential decision in the case. Given the standoff in Congress, it’s unclear when the Supreme Court will again be fully staffed. It’s possible that the stalemate may not end until after the presidential election this November.

SEVENTH CIRCUIT HAS RULED THAT SOCIAL SECURITY FRAUD IS NOT AUTOMATIC ‘MORAL TURPITUDE’

The Seventh Circuit recently ruled that falsely using a Social Security number to work is not necessarily a “crime of moral turpitude” that would automatically bar an immigrant convicted of this offence from contesting removal proceedings. While the Ecuadorian national falsely provided a Social Security number to work for the Grabill Cabinet Company, where she worked since her arrival to the U.S. from Ecuador in 2000, she presented evidence that she has filed an income tax return for every year she has been in the U.S. through 2012. The three-judge panel thus held that the Board of Immigration Appeals erred in holding that an immigration judge’s finding that her actions constituted a crime involving moral turpitude prevented her from being eligible for the relief of cancellation of removal. Cancellation of removal enables foreign nationals residing in the U.S. for a period of ten (10) years who file U.S. income taxes and can show extreme hardship to a U.S. spouse or child the ability to remain lawfully in the U.S. and obtain lawful permanent resident (green card) status.

IMMIGRATION FINES FOR EMPLOYERS HAVE INCREASED

The Justice Department has increased the penalties for employers violating U.S. immigration law. This includes, among other things, violating the requirement that employers properly complete the required I-9 employment eligibility verification forms (forms that help verify an employee’s identity and employment authorization). The increases are substantial. For example, the penalty for a first offense of employing unauthorized workers has gone from a range of $375 to $3,200 per violation to a range of $539 to $4,313 per violation. Paperwork violations (such as a failure to properly complete the I-9 form) have gone from a range of $110 to $1,100 per violation to a range of $216 to $2,156 per violation. The Departments of Labor and Homeland Security have also increased the penalties for violating H-1B, H-2A and H-2B programs. For example, the penalty that applies when an employer displaces a U.S. worker during a period of time beginning 90 days before and ending 90 days after it files an H-1B high skilled guestworker petition has increased from $35,000 to $50,758 per violation. These new penalties are currently in effect and apply to violations since Nov. 2, 2015.

IMMIGRANT WORKERS CANNOT CHALLENGE GREEN CARD PETITION REVOCATION

The U.S. Court of Appeals for the Fifth Circuit has ruled that an immigrant worker whose I-140 employment-based green card petition was revoked after his application to adjust to lawful permanent resident status was denied cannot challenge such revocation. This comes to no surprise as most U.S. appeals courts have ruled that a decision to revocate an I-140 immigrant visa petition is not reviewable – even after the worker moves to another job that is the same or similar to the one listed on the I-140 petition, and the worker’s I-485 application to adjust to lawful permanent resident status has been pending at least 180 days. This includes challenges that the United States Citizenship and Immigration Services (USCIS) did not follow its own regulations when making the decision of whether to revocate. But, courts have also largely held that the immigrant worker, his employer, or both, are entitled to receive notice of an intent to revoke. This would thus allow an administrative challenge to the decision.

SOFTWARE TRAFFICKING FELONY NOT GROUNDS FOR CITIZENSHIP DENIAL

The Ninth Circuit recently published a decision that the U.S. Citizenship and Immigration Service (USCIS) cannot deny a naturalization application based on a crime that does not actually rise to the level of an aggravated felony. The opinion by U.S. Circuit Judge William A. Fletcher came in a case involving the naturalization application of a Chinese woman, Lifeny Wang, who had been convicted of trafficking in counterfeit Microsoft software.

CALIFORNIA OUTLAWS IMMIGRATION EVIDENCE IN INJURY LAWSUITS

California Governor Jerry Brown has recently signed a bill into law that will bar the admission or discovery of evidence relating to a person’s immigration status in wrongful death and personal injury cases. According to Assemblywoman Lorena Gonzalez who has sponsored this bill, “California has spent decades working to ensure people are not additionally penalized for their immigration status [and this] would close an accidental loophole benefiting those who seek to exploit immigrants.” The bill will take effect on January 1, 2017.

THE DEPARTMENT OF HOMELAND SECURITY EXTENDS TPS FOR SYRIANS

The Department of Homeland Security (DHS) has announced that it will extend the temporary protected status (TPS) for Syrian nationals through March 31, 2018, starting October 1, 2016, for new applicants. TPS allows beneficiaries to obtain an employment authorization document (EAD), to be granted travel authorization, and to not be removable from the United States. This is a temporary benefit based on a determination by DHS that the conditions in a given country make it unsafe for such nationals to return. As such, this is for nationals from a designated country who are already in the U.S for a given time period, which does not lead to lawful permanent resident status. About 5,800 Syrians already on TPS are expected to re-register, while another 2,500 who have not already received TPS are expected to register for the first time.

ANNOUNCEMENT: NEIL WEINRIB TO LECTURE ON EB-5 GREEN CARD INVESTMENT

Neil Weinrib will be presenting a lecture entitled “How To Navigate Through the Immigrant Investor Program” (‘EB-5’) on behalf of World Wide Land Transfer on Wednesday September 7th at 8. a.m. at Capitol One, 299 Park Avenue, 17th floor, NYC. If you would like to attend please contact Michelle Wu at: Mwu@wwlandtransfer.com

ADVISORY ALERT

Many immigrants all over the U.S. are being targeted in scams where they are contacted by phone or email by individuals claiming to be a U.S. government official. They will often say that there is a problem with an application or additional information is required to continue the immigration process. They will then ask for personal and sensitive details, and demand payment to fix any problems.

However, this is a scam. United States Citizenship and Immigration Services (USCIS) officials will never request payment over the phone or in an email. You will receive an official government letter in the mail should USCIS require any payment with respect to an application.

If you receive a scam email or phone call, report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you are not sure if it is a scam, forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.

SAMPLING OF RECENT NAWLAW ACCOMPLISHMENTS

  • H-1B extension approval for a Chinese national working as a Marketing Coordinator
  • H-1B approval for a Philippine national working as a Business Development Associate
  • H-1B approval for a Chinese national working as a Statistician
  • H-1B extension approval for a Romanian national working as a Research Associate
  • H-1B approval for an Indian national working as a Director of Operations
  • H-1B approval for an Irish national working as a Digital Marketing Account Specialist
  • H-1B extension approval for an Indian national working as a Software Engineer
  • L-1A extension approval for an Indian national working as the President – Managing Director of a food and clothing distributor
  • L-1A approval for an Indian national working as the President of an Automotive-oriented business enterprise
  • L-1A extension approval for an Indian national working as the Vice President of Operations of an exporting, supplying, and manufacturing international business
  • EB-1 Extraordinary Ability Green Card approval for an Italian national working as a Fashion Stylist
  • O-1B (extraordinary ability) approval for a Malaysian national working as a Piano Instructor
  • O-1B (extraordinary ability) approval for an Indian national working as a Composer / Producer

RECENT CLIENT QUERIES

  1. U.S. national owner of a small company asks if he can be a J-1 visa sponsor? Ans. For a company to be authorized to host a J-1 trainee, the partnering agency usually conducts a site visit for small companies at their location to determine if there is a physical office with sufficient employees for placement of the J-1 trainee. If your company currently does not have any employees and is currently operated from your home, this will not pass the J-1 agency scrutiny to qualify the company to host a J-1 trainee.
  2. Canadian TN asks if it is permissible to work as an independent contractor for the U.S. entity as well as obtain compensation above and beyond the designated TN salary? Ans. Yes. A TN beneficiary can be an independent contractor and can also receive compensation above the designated TN salary. A TN beneficiary can also work for multiple companies.
  3. French national currently on an E-2 visa asks if he is permitted to visit Cuba or if it will it affect his E-2 visa? Ans. This should not present a problem so long as you are holding a valid visa.
  4. A potential E-2 investor visa applicant asks if the capital contributions he receives from his family in Belgium is considered taxable in the U.S? Ans. Capital contributions are not taxable according to U.S. law.
  5. My conditional green card is scheduled to expire in April 2017. How far in advance can I apply for the removal of conditions to permanent card? Ans. You are permitted to apply for removal of conditions 3 months in advance of the expiration date.

CLIENT TESTIMONIALS

Testimonial from a Philippine national upon an H-1B visa approval: “Thank you so so so much to all of YOU!!!!!!!! Best news ever!

Testimonial from an India national upon an O-1 visa approval: “Thanks once again to you and the whole team for your wonderful work. I know this was a less than straightforward case and I appreciate your team’s efforts, and constant communication so very much.”

Testimonial from an Italian national: ” I am so happy!!!! I hope my life will take a new healthy and prosperous turn now!!! You are the best lawyer”

Testimonial from an India national upon an O-1 visa approval: “AMAZING! MAZEL TOV!! Thank you so so much because this wouldn’t have happened without all of your support and perfect work!