Category Archives: Employment-Based Green Cards

It’s a Fine Executive Order, But What Will the 2017 President Do?

Obama immigration speechMany immigrant groups have expressed disappointment that President Obama’s Executive Order of November 20, 2014 did not go further in easing the lives of immigrants within the United States.

Latino groups, for example, would have liked to see relief for farmworkers, LGBT groups would have liked to see relief for those without family relationships to draw on, and young beneficiaries of Deferred Action for Childhood Arrivals (DACA) would have liked to see their parents and other non-DACA-eligible family members receive derivative benefits, such as a work permit and similar protection from deportation.

But I’m impressed that the order went as far as it did, basically stopping just short of granting any new, permanent legal status to non-citizens of the United States. Doing so is traditionally seen as the role of Congress, though the exact line between the president’s and Congress’s power over immigration matters has never been clearly drawn. (For a full legal analysis, see “The President and Immigration Law,” by Adam Cox and Cristina Rodriquez.)

The expansion of the provisional waiver program, for example, is a huge fix to what was essentially a procedural inequity, allowing adult children of U.S. citizens as well as spouses and children of lawful permanent residents who were living in the U.S. unlawfully and not among those allowed to file paperwork here, but too scared to leave to collect the green cards they were otherwise eligible for, to file a waiver request and obtain assurance before their departure that they’d be allowed back into the United States. (Sorry, there’s just no way to make that brief and easy to grasp. Put another way, the provisional waiver allows them to apply for a waiver of their unlawful presence in the U.S. before, not after taking the risk of departing and then being barred from return. Is it any wonder the press and public seem a little unclear on the details?)

For more on this and other changes made by the Executive Order, see Nolo’s update, “President Obama Announces Executive Action on Immigration.”

The bottom line, however, is that an executive order can be easily undone by the next executive — and we don’t know who will succeed President Obama after the 2016 election. Immigrants are plenty aware of this fact. That’s why far fewer young people applied for DACA relief than were eligible or expected.

If it’s true that young people have a sense of invincibility, then one might argue that the new group of deferred-action-eligible people created by President Obama’s order — parents of U.S. citizens and permanent residents — might be even less willing to say, in effect, “Hey look, I’m here illegally, here are my name and address for your files!”.

They know, better than many of the opponents of the President’s order, that neither DACA nor the new Deferred Action for Parental Accountability (DAPA) program is in any way an amnesty. Neither program offers a path to a green card — DACA and DAPA provide only a work permit and a short-term promise that those approved won’t be deported. As stated to the National Journal by Marc Rosenblum, deputy director of the Migration Policy Institute’s U.S. Immigration Policy Program, “Those who have a stable job and aren’t looking for a new one might decide it’s safer to keep their names off the government’s books.”

The one thing that every group representing, or even interested in the fate of immigrants and refugees in the U.S. seems to agree on, is that Congress needs to get its act together and actually pass immigration reform. That will no doubt fall short of providing the relief that everyone hopes for too, but at least it will offer some certainty.

We’re All Affected by Cutoff of Investor Visas for Chinese Nationals

iStock_000004626357SmallAs described in Nolo’s update, “EB-5 Visas for Chinese Nationals Become Temporarily Unavailable for the First Time,” investors from China used up their 7% share of the 10,000 visas allotted in the investor-visa category in 2014, and the State Department is apparently ending its policy of letting them take the extra visas left over from other countries.

That’s a problem if you’re a national of China who was hoping to obtain a U.S. green card (lawful permanent residence) by making a minimum $500,000 investment in a U.S. company (category EB-5).

But as explained by attorney Jim Butler in his article in the San Francisco Daily Journal, “Immigrant investor visas threatened,” the fact that China hit the limit this year could also be a problem for the U.S. economy.

EB-5 visa applicants don’t typically start their own little businesses. Instead, they look to streamline the process by going through agents and middlemen who arrange investments in large projects, most commonly real-estate developments. Hotels, restaurants, night clubs, and senior living facilities in the U.S. have all been major recipients of Chinese investment money. The last Marriott or Hilton you stayed in may have been the result of a Chinese citizen’s wish to obtain a U.S. green card.

Will other countries take up the slack? Not much, if they haven’t so far. Butler says, “China is where the program is best understood, where a sophisticated system of marketing agents is available to help American developers find investors, and where the population has the largest interest in U.S. immigration and the willingness to pay for it.”

So, the next Marriott or Hilton you were hoping to stay in may just be a hole in the ground until and unless someone takes steps to fix this! And why shouldn’t they fix it, given the shot in the economic arm such investments provide? But the State Department’s policy reversal seems to indicate that someone up there is thinking more about the letter of the law than economic common sense.

The Justin Bieber Immigration Chronicles, Continued

If I blog about Justin Bieber for the third time in a row, does that make me a “Belieber?” (Nah, I still can’t hum a thing he’s recorded, sorry.)

But he’s become the world’s best object lesson regarding U.S. immigration law and policy.

drug dogIn his latest kerfuffle, reported on by CNN, U.S. Customs and Border Protection (CBP) officials searched his private plane, interviewed him for “several hours,” and brought in the trusty drug-sniffing dogs before letting him back into the U.S. from his recent trip to Canada.

(CBP are the same folks who meet you at the airport or border, examine your passport or other entry documents, and ask whether you’re bringing in any drugs, snakes, explosives, and so on before they hopefully wave you in).

Their reason for spending so many time on Bieber? To get autographs for their kids, of course! Oh, no, the officials say that they’d “detected an odor of marijuana after [the plane] landed in New Jersey.”

Uh oh, the dreaded weed. Maybe they’re getting into the spirit of the “let’s deport Justin” movement, because had drugs been found, that plus his earlier admission of having been smoking marijuana might very well be enough to have him removed from the U.S. as a drug abuser. (See my earlier blog, “Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?“)

But either their sniffers were overactive that day or the Bieber entourage does a really, really good job of hiding its dope, because nothing was found. Justin was allowed into the U.S., with nary a stain on his record. That means he doesn’t get to join my list of  “International Celebrities Denied U.S. Entry Visas.” (Then again, by the pilot’s description, they may have simply smoked it all.)

How Will You Know When USCIS Declares a Snow Day?

whitehousesnowWhen local schools are closed due to snow, you will usually hear it announced it on local radio and TV stations (and you can hear the cheers from around the neighborhood).

But how do you find out whether the office of U.S. Citizenship and Immigration Services (USCIS) at which you are scheduled to attend an interview or provide your biometrics has been closed due to bad (sometimes called “inclement”) weather? Sometimes the media may mention the closure of federal buildings, but it’s best not to count on this as your sole source of information.

If you have a lawyer, and he or she is a member of the American Immigration Lawyers’ Association (AILA), your lawyer will likely receive an email with any notifications of USCIS office closings.

If you don’t have a lawyer working on your immigration case, however, you may need to do a little research on your own if the weather is looking bad. USCIS does not make any attempt to reach out to people individually — trying to call or even email the thousands of people who are scheduled for appointments on a given day would probably take well into that night!

USCIS will reschedule non-INFOPASS appointments due to its own closure automatically, but that’s done by letter, and could take weeks. (If you made an INFOPASS appointment to visit a USCIS office, however, you’ll need to go online and reschedule that one yourself.)

The most reliable source of such information is on the “Field Office Closings” page of the USCIS website. On most days, it will simply say (in the top paragraph under the date) “All offices are open on schedule today.” On other days, however, this page will state which of USCIS’s offices nationwide are closed. According to a USCIS spokesperson whom I contacted, they also make an effort to advise people via social media, including the USCIS Facebook page and Twitter.

If in doubt, you could also try calling the National Customer Service Center at 800-375-5283.

If you are still in doubt, do your best to make it to your appointment. Failure to do so could result in weeks of delay at best, and possible denial of your application for immigration benefits.

With Broken Promises Like These, Why Would Anyone Help the U.S. in a Conflict Zone?

Breaking pointAsk any immigration lawyer: What the law says and what actually happens in real life can be miles apart, due in large part to competing interpretations — or simply bureaucratic foot dragging — by  various U.S. government agencies.

This is nowhere better exemplified than in the case of the Afghan and Iraqi translators and other workers who helped the U.S. government or military during recent conflicts in their countries. They put their lives at risk, knowing that after the U.S. soldiers went home, they’d have to face reprisals from within their own community.

In what was meant to be a response to their plight, the U.S. Congress created visas within the “Special Immigrant” category. (By way of context, years ago, a similar visa was created for citizens of Panama who put themselves at risk on behalf of the U.S.) See “EB-4 Visa for Special Immigrants: Who Qualifies?” for a complete list of who is covered by this section of U.S. immigration law.

The U.S. government has been very careful to make sure this visa did not create an open door for anyone who might want to come to the United States. It added requirements that both the Iraqi and the Afghan workers “experienced or are experiencing an ongoing serious threat as a consequence of” their employment.  In order to submit a complete application, they must come up with letters of recommendation and assessments of the risk level that they face, from U.S. supervisors and other higher-ups. In other words, they’re far from seeking U.S. entry based on their word alone!

So why is it that only a miniscule number of visas been handed out in this category, which is due to sunset — that is, drop out of the law books, leaving potential applicants high and dry — in mere weeks? The stories are wrenching, as can be seen in such articles as “America’s Afghan And Iraqi Interpreters Risk Lives But Wait Years In Danger For Visas” and “U.S. Soldier Fights For Afghan Interpreter Who Saved His Life.”

The answer can partly be found in another portion of the requirement for these applicants: that they pass a U.S. security check. Given that the countries from which they hail are among those that the U.S. suspects of supporting or sponsoring terrorism, Mother Teresa herself might have trouble passing the security check. And as described in the media coverage above, once your enemies find out you’re trying to head for the U.S., a well-placed call denouncing you may be all that’s needed to seal your fate.

An even more bizarre reason can be found in this 2011 State Department compliance report regarding the U.S. Embassy in Kabul. It states that, “The embassy opposes the brain drain from Afghanistan of rare, highly qualified individuals. It also questions the realities of the threat environment in individual cases and highlights the extensive resources needed to implement the program.”

Excuse me? Congress saw fit to pass a law to specifically protect people whose lives are at risk, and the embassy in Kabul is worrying about a “brain drain?” I cry foul. Now if Congress would only listen, and extend the sunset date on these laws.

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

mex border fenceThe legislation being hammered out in the Senate right now contains some pretty expensive elements. Specifically, committing even more resources than have already been thrown at the project of turning the U.S. border with Mexico into an impenetrable barrier is going to cost big bucks. Some $40 billion, to be spent on new border security agents, new drones, new fencing, and so on.

And where will this money come from? Much media attention was devoted recently to a U.S. government report showing that, if the bill is passed, the U.S. government and economy will actually get a boost. New taxpayers will contribute to the system, more undocumented immigrants will start new businesses, and all will hum along happily.

But that shouldn’t obscure a basic reality of the legislation as it stands, containing a recent compromise amendment from Senators Corker, Hoeven, and others. As noted in a recent press release from the American Immigration Lawyers’ Association (AILA), the spending on this bill isn’t going to come from the taxes and economic activity generated by these hardworking immigrants. It looks, for all the world, like it’s going to come straight from the immigrants pockets, as fees when they file their applications for immigration benefits.

AILA explains, “a startling and little-publicized requirement of the amendment would be that all ‘mandatory enforcement expenditures under the Act’ would be funded not by appropriated funds but by additional fees charged to those petitioning through the regular, legal immigration process.”

How high could these fees go up? They’re already in the thousands of dollars for many applications.

The proposed amendment says not only, “the Secretary may adjust the amounts of the fees and penalties . . .  except for [certain] fines and penalties,” but “If the Secretary determines that adjusting the fees and penalties set out [above] will be insufficient or impractical to cover the costs of the mandatory enforcement expenditures in this Act, the Secretary may charge an additional surcharge on every immigrant and nonimmigrant petition filed with the Secretary in an amount designed to be the minimum proportional surcharge necessary to recover the annual mandatory enforcement expenditures in this legislation.”

Ouch! Sky’s the limit!

If you’re an immigrant who already has a path to a visa or green card, the best advice I can give is to make sure the process moves forward as quickly as possible, to win the race against time and this new legislation.

Are You “Extraordinary” Enough for an EB-1A Green Card?

turbanEveryone likes to think they’re something special.

But could you prove to the satisfaction of a U.S. immigration official that your abilities in the sciences, arts, education, business, or athletics, are so extraordinary that they’ve been publicly recognized, and resulted in a period of sustained national or international acclaim?

The payoff is big. Noncitizens of the U.S. who can prove this may qualify for a green card as a priority worker (EB-1A), which doesn’t even require an employer to petition for (sponsor) you.

Just satisfying the documentation requirements calls for extraordinary persistence and patience, however. Applicants need to come up with items like proof of box office success or high salary, letters of recommendation from professional peers, articles about their work published in the media or professional journals, evidence that they’ve been invited to judge others’ work, scholarly articles that they’ve written, and all-around proof that they’ve made original, unique contributions to their field.

Who actually succeeds at this? A mere two-thirds of the people who apply, unfortunately. NBC News gives us a picture of some of the successful applicants in its recent article, “To get green cards, these immigrants must prove they are extraordinary.” Naturally, NBC tried to profile some colorful characters, including a Harvard-trained scientist from India whose research into stem cells could lead to disease cures and a vintage-style burlesque performer from Canada whose “unique contributions” have helped turn this type of dance (in her description, somewhere between ballet and a striptease) into an art form.

Before you buy heels and feathers and sign up for dance classes, however, realize that “burlesque performer” is practically unheard of as a path to success in the EB-1 category. In fact, the fact that this applicant was approved is doubly impressive when you realize that the immigration service centers refuse to view or listen to electronic materials such as CDs or videos, and aren’t allowed to check websites such as YouTube. (It’s against their policy, according to an AILA/SCOPS Teleconference of March 27, 2013). I’m sure they didn’t even peek at her videos.

Watch Out for Visa Categories With Expiration Dates

eagleOne of the perennially difficult things about visas to the United States (both temporary and permanent ones) is that many of the categories are not written into the law in stone, but come with expiration dates. If Congress fails to take action to renew the visa category when it sunsets, no more visa category.

That’s bad luck not only for anyone thinking of applying for the visa in question, but typically for anyone who isn’t all the way through the system by the category’s expiration date. Applicants who haven’t either adjusted or changed their status while living in the U.S. or obtained a visa from a U.S. consulate overseas and used it to enter the United States will be stopped in their tracks and refused U.S. status or entry.

In some cases, Congressional renewals seem to happen fairly regularly (if last minute), such as with the R visa for religious workers.  (After reauthorization last fall, the R visa category is now good until September 30, 2015.)

In other cases, however, particularly where the visa was meant to respond to an urgent but not necessarily long-term need, Congress may decide to let the visa category lapse. Such may be the case with the Special Immigrant Visa for Iraqi translators.

This visa (allowing U.S. permanent residence or a green card) has been around only since 2008. It authorized issuance of 5,000 immigrant visas per year through September of 2013 (the government’s fiscal year end) to Iraqis who had served the U.S. government in Iraq.

The idea was to protect Iraqis whose work on behalf of the U.S. makes them potential targets of threats and violence by people in their own country.  According to the International Rescue Committee, “an untold number have been kidnapped or killed.” The trouble is, according to the IRC, the threats have continued after the 2011 departure of U.S. troops from Iraq, and not everyone who qualifies for a visa in this category has succeeded in getting one.

Okay Congress, you’ve got six months to act . . . .

BIA Ruling Eases Use of Advance Parole by Adjustment Applicants

Don’t miss this recent update on Nolo’s site if you are applying for a green card in the U.S. through the procedure known as “adjustment of status,” might like to travel while awaiting your green card interview, but were afraid to leave because your accrual of unlawful presence in the U.S., might result in you being found inadmissible upon your return.

The Board of Immigration Appeals has held that departures under Advance Parole with an adjustment of status application pending do NOT trigger the unlawful presence bars. You can travel after all.

There’s more information here, under “New Ruling Allows Applicants for Adjustment of Status to Leave U.S. With Advance Parole Without Facing Time Bars Upon Return.

News Regarding Work Permits for H-1B Spouses Not So Great After All

As I mentioned in an earlier entry (called “Great News for F-1 and H-1B Visa Holders,”) DHS has announced plans to allow H-4 spouses to work in the U.S., during the time that the H-1B visa holder is awaiting action on an adjustment of status (green card) application, and after a “minimum time spent in the U.S.”.

Thanks to Gary Endelman and Cyrus Mehta, we have a bit more information about that “minimum time.” Their column, “Working: H-4 Spouses Get to Take a Step Forward, But Is It a Giant One?” reveals that the government is requiring that H-1B holders have already received an extension of their stay in order for the spouse to qualify for a work permit (EAD) — in practical terms, that the H-1B holder have already been in the United States for six years.

As happens so often, we can describe the immigration rules, but we can’t explain the logic behind them. As Endelman and Mehta point out, nothing in the underlying immigration laws actually prohibits H-4 spouses from working in the first place. This is all a matter of agency “interpretation” (though I’d prefer the word “overthinking”).