USCIS Announces Benefits for Filipino Nationals Affected by Typhoon Haiyan

November 15th, 2013 No comments
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In light of Typhoon Haiyan in the Philippines (named “Yolanda” by Philippine authorities), U.S. Citizenship and Immigration Services (USCIS) would like to remind Filipino nationals that they may be eligible for certain immigration relief measures if requested.

USCIS understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status in the United States. Therefore, Filipino nationals impacted by Typhoon Haiyan may be eligible to benefit from the following immigration relief measures:

– Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
– Extension of certain grants of parole made by USCIS;
– Extension of certain grants of advance parole, and expedited processing of advance parole requests;
– Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
– Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
– Expedited adjudication of employment authorization applications, where appropriate; and
– Assistance to LPRs stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

If you are a Filipino National and wish to learn more, contact The Nunez Firm to schedule a consultation.

Naturalization Approved for Huntington Beach Client with Extensive Travel Abroad

November 15th, 2013 No comments
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One of our Naturalization clients from Huntington Beach was approved earlier this week. He had been a permanent resident for over eight years, but just recently decided to naturalize. He met all of the requirements for naturalization, but there was an issue with establishing physical presence in the United States. For the last four years his employer has required him to travel abroad extensively. Over the last year, he typically spent 30-40 days in Central America, then returned to the US for two weeks before traveling again.

One of the requirements for naturalization under INA 316(a) is that the applicant prove that during the five years immediately preceding the filing of the N-400 the applicant has been physically present in the United States at least half the time. Although physical presence and continuous residency are interrelated concepts, they are distinct requirements for naturalization.

In our case, the client wanted to naturalize soon because his frequent travels would eventually make him ineligible to naturalize. In 2008, he did not travel abroad much at all, so he accumulated substantial time in the US. However, in 2012 and 2013, he was spending only one quarter of his time in the United States. When we filed the naturalization case in June, we calculated that he had spent just over 800 days outside the United States. There were 1,826 days in the last five years; therefore, in order to be eligible to naturalize, we had to prove that he spent no more than 913 days abroad.

The naturalization interview was scheduled for September, but our client could not attend, so we rescheduled. The week before the naturalization interview, we recalculated his time outside the United States (because he had traveled abroad since we filed the N-400 with USCIS). After checking and rechecking every passport stamp, flight itinerary and other documents, we concluded that he had spent exactly 913 days outside the United States – half of the last five years.

At the interview, the USCIS officer (who I had worked with on many other cases) looked over the travel records and we answered questions about recent travel. I discussed and explained section 316(a) with the officer and he agreed that my client was just barely eligible to naturalize. At the end of the interview, the case was approved, and my client should receive the oath ceremony notice early next month.

My client was very pleased with the outcome. He looks forward to taking his citizenship oath and possibly filing visa petitions for some family members still living abroad. If you are considering the naturalization process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you and discuss the facts and law involved in your case so you can be better informed on your options.

EB-5 Regional Center Program, The Form I-924, and Hypothetical Projects Versus Actual Projects

November 14th, 2013 No comments
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When a regional center seeks approval from USCIS for the EB-5 Regional Center Program, it must file an I-924 with the agency. In deciding whether to approve the I-924 form USCIS will focus on several factors.

When a regional center files the I-924 form with USCIS, the applicant regional center may include either hypothetical projects or actual projects in their business plan and projections. An actual project refers to a specific project proposal that is supported by a Matter of Ho compliant business plan. A hypothetical project refers to a project proposal that is not supported by a Matter of Ho compliant business plan.

If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. Determinations based on hypothetical projects, however, do not receive deference from USCIS for later I-526 filings. When the form I-526 is filed, USCIS will perform a de novo review of the actual projects in which the investment is being made. Clearly, immigrant investors will prefer to invest in projects that have already been reviewed by USCIS and received a deference-based approval.

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Organizational and transactional documents provided to USCIS with the I-924 hypothetical project will not be reviewed to determine compliance with EB-5 program requirements because these documents will receive de novo review in subsequent filings. USCIS does not want to waste it’s time in thoroughly analyzing hypothetical projects if they are merely hypothetical. If the applicant regional center wants USCIS to review organizational and transactional documents for EB-5 program compliance, a Form I-924 application with a Form I-526 exemplar should be submitted. An exemplar refers to a sample Form I-526 petition, filed with a Form I-924 actual project proposal, that contains copies of the commercial enterprise’s documents, which USCIS will review to determine if they are in compliance with established EB-5 eligibility requirements.

Form I-924 cases based on actual projects require more details than a hypothetical project filing because USCIS will determine whether the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. Determinations based on actual projects, however, will be accorded deference to subsequent filings under the project involving the same material facts and issues.

In some cases, regional centers will file an I-924 with a hypothetical project initially. Later, once the actual project details are available, the regional center might file an amended I-924 with an exemplar I-526 in order to obtain a favorable determination from USCIS  which will be accorded deference in subsequent I-526 filings.

For more information on EB-5 scams and common misconceptions about the EB-5 program, click here.

Senate Bill 744 – The X Visa

November 13th, 2013 No comments
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Senate Bill 744 is over 1200 pages, and it’s not a poolside read. The bill reforms almost every aspect of our current immigration system in one way or another. For more information and an overview of the major changes, click here.

Senate Bill 744 creates several new visa categories including the W visa, X visa and EB-6 visa. Although these visas are not yet available, it’s important to understand what new immigration options might become available in the future should comprehensive immigration reform become law.

Section 4801 of Senate Bill 744 creates a new non-immigrant investment category called the X visa. Unlike the E-1 and E-2 visa, the X visa does not require a treaty between the US and the alien investor’s home country. Under the E-1 and E-2 system, Chinese and Indian nationals were ineligible because their home countries do not have treaties with the US. An X visa applicant would be eligible to receive temporary permission to live in the US if she can prove that during the prior three years she has invested $100,000 minimum in a US business. If the investment is less than $100,000, the X visa applicant may still be eligible if she can prove that she has created no fewer than three jobs and annual revenue is at least $250,000.

X visa holders would be eligible for three year renewals as well. The renewal will be approved if the X visa holder can prove that during the prior three year X visa period, the alien investor has invested $250,000 in the business. If the alien has not invested $250,000 in the business during the last three years, the X visa can be renewed if the business has created three jobs and generated at least $250,000 in annual revenue.

A one year renewal is available for the X visa holder if during the last two years in X status, the business has created three jobs and $200,000 in revenue per year. USCIS can waive the renewal requirements under certain circumstances.

It’s important to note that unlike the EB-5 immigrant investor option, the investor does not receive a green card. The X visa is only a temporary visa.

Head of American Bankers Association Calls For Republicans to Support Immigration Reform

November 11th, 2013 No comments
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WASHINGTON — The head of the American Bankers Assn., who is a former GOP governor, made a strong pitch Monday to his fellow Republicans to support  the bipartisan Senate immigration reform legislation by invoking party hero Ronald Reagan.

Frank Keating, president of the group since 2011, said in a Times opinion article that Reagan would say “it’s time to open the doors” to immigrants to boost the economy.

Conservatives were wrong to oppose the Senate legislation, supported by President Obama, that would overhaul the system and provide a path to citizenship for the estimated 11 million people in the country without legal status,” Keating said.

“Unfortunately, too many conservatives — though they aspire to walk in Reagan’s footsteps — have forgotten that immigration reform is the most Republican of causes,” wrote Keating, a self-described Reagan Republican who served as governor of Oklahoma from 1994-2002.

“We cannot support open borders for trade but not for people,” he said in the article, titled “What Would Reagan Do?”

“We cannot make America stronger and more prosperous by excluding tomorrow’s talent and industry.”

Keating, an influential voice in the financial services industry in Washington, joins the U.S. Chamber of Commerce and other business groups in trying to push House Republican leaders to take up the immigration reform legislation that passed the Senate in June.

Many House Republicans oppose the comprehensive Senate bill, which includes a controversial  13-year path to citizenship for qualified immigrants.

U Visa Approved for Westminster Client Based on Victim of Domestic Violence; VAWA not available

November 11th, 2013 No comments
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We recently received an approval for one of our U visa clients from Westminster. Her husband was physically violent with her on several occasions, but in 2011 he was arrested by the Westminster Police Department for domestic violence. He ultimately pled guilty to California Penal Code 273.5. While the criminal case was pending, the client came to us to inquire about VAWA or a U visa.

In order to pursue VAWA, the applicant must prove to USCIS that she is married to a US citizen or permanent resident who has been physically abusive or emotionally cruel. In this case, the client’s husband was not a permanent resident or US citizen, so VAWA was not an option.

For U visa eligibility, the alien must prove she has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime. The test for substantiality involves many factors including, but not limited to, the nature of the injury suffered and the severity of the perpetrator’s conduct. In this case, we included a detailed personal statement from the client regarding the pain – physical and emotional – that the abuse caused. We also had one of our psychologists interview her and write a report for us.

Additionally, U visa applicants must prove to USCIS that the alien possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity. A certifying official with a qualified certifying agency must attest to the applicant meeting this requirement.  A certifying agency is a federal, state or local law enforcement agency, prosecutor, judge or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. Who qualifies as a certifying official depends on the agency involved. In the present case, we used the district attorney’s office, and they singed off on the U visa petition.

The U visa applicant must prove that she has been helpful, or is being helpful with the investigation and prosecution. Once again the certifying agency/official must sign off on this requirement. Our client was interviewed by the police and cooperated fully with the prosecution of her husband.

When we filed, we included the I-918, supplement B, a signed statement from our client explaining the circumstances surrounding the crime and other evidence to support the U visa application.

We filed the U visa petition with USCIS in Vermont over one year ago, and we just now received the approval notice. The daughter of our client was also approved for U visa status as the unmarried child under 21 years of age. Our client received work authorization and she will be eligible to adjust status to permanent resident in three years.

If you are a foreign-born victim of a serious crime, contact The Nunez Firm to inquire about the U visa process. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and whether you can benefit from a U visa.

 

Senate Bill 744 – Comprehensive Immigration Reform, But What Does That Mean

November 8th, 2013 No comments
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In June 2013, the Senate passed Senate Bill 744, a comprehensive immigration bill that would completely re-work the country’s immigration system. As of this date, the House is still undecided. The key issue for House Republicans is the path to citizenship for undocumented aliens. There are many rumors about what Senate Bill 744 includes, and I hope with this post to clear up any misconceptions regarding what’s involved in Senate Bill 744.

Senate Bill 744 involves several major areas of immigration policy including border security, immigrant visas and agricultural workers, interior enforcement of immigration laws and E-Verify, and non-immigrant visas.

BORDER SECURITY

Regarding border security, Senate Bill 744 increases the Department of Homeland Security budget from $59 billion to $79 billion, which is a 34% increase. There would be a huge increase in the resources for the border, and the number of agents would be doubled from 19,000 to 38,000. A new passport control system would be put in place to track the exits of aliens departing the United States as well. 700 miles of additional fencing along the southern border would be installed and more mobile surveillance would be used.

The bill would give Department of Homeland Security six months to create a strategy for using the resources, and a six month time frame to develop a security strategy to monitor 100% of the borders and prevent 90% of illegal crossings.

IMMIGRANT VISAS AND AGRICULTURAL WORKERS

Senate Bill 744 would develop a new category for immigrants called registered provisional immigrants (RPI). Undocumented aliens currently in the US would be eligible to become RPI under Senate Bill 744. The RPIs would be eligible to become lawful permanent residents and obtain a green card in the future, but certain border security goals must be met before this is possible. In order to qualify for RPI status, the alien must have been residing in the US since December 31, 2011. The alien cannot have any felonies, aggravated felonies in order to qualify, and if the alien has two or more misdemeanors, s/he will be ineligible. Aliens must pay assessed taxes and a $1,000 penalty fee along with application fees. Spouses and children would be eligible for RPI status as well. The RPI status waives the three and ten year bars for unlawful presence. Prior deportations and exclusions may be waived if the individual has a close relative who is a US citizen or permanent resident. RPI status would be available only after DHS issues the final regulations, and DHS would have one year to develop regulations. (This means that even if Senate Bill 744 passed today, no one could file for about a year or more.)

RPI approved aliens would receive work authorization. The initial approval would be for six years, but the RPI can renew for an additional six years if s/he has been continuously employed. RPI can apply for permanent resident status after ten years if certain other immigration policy goals are met. To become a permanent resident, aliens must show English proficiency, pay an additional $1,000 penalty and filing fees and taxes. Once the RPI is a permanent resident, s/he can apply for naturalization in three years. The total path to citizenship would be around 13 years.

RPI would also be available for Dream Act applicants. In order to file for RPI for Dreamers, the alien must meet all criteria for regular RPI. Dreamers will be eligible to adjust status to permanent residents after only five years. They can immediately naturalize upon becoming permanent residents. Path to citizenship would be five years. To be eligible for the Dream Act, the alien must show that s/he entered before age 16, graduated high school or passed the GED, completed two years of college or four years of military service, and passed background checks. The Dreamer must pass an English test as well.

The EB-5 Immigrant Investor Program is to be made permanent as well. Premium processing of EB-5 cases will be possible. EB-5 applicants will be able to concurrently file for adjustment of status when they apply for the EB-5. The required investment amount will fluctuate based on percentage change to CPI during prior fiscal years.

INTERIOR ENFORCEMENT

Senate Bill 744 would make E-Verify a mandatory process. It would phase in E-Verify over time. E-Verify is an electronic employment verification system for employers to check whether an individual is authorized to work in the US. E-verify would be required for new hires and current employees. Employers with 5,000 or more employees would be required to use E-Verify within two years of regulations being finalized. All employers must use E-Verify within four years. The fines for employer violations are increased as well.

Senate Bill 744 requires the Social Security Administration to issue identity theft resistant social security cards within five years.

NON-IMMIGRANT VISAS

Senate Bill 744 would increase the number of H-1B visas from 65,000 to 115,000 – 180,000, but ties the number available to market conditions such as unemployment rate. Employers will not be allowed to have more than 50% of workforce on H-1B or L visas. For H-1B visas, employers will need to advertise the position, which might end up being a mini version of PERM certification.

The comprehensive immigration reform bill would also introduce the W visa. There are many other new visa options under Senate Bill 744 such as the retiree visa, the X visa, and the EB-6 visa.

Keep in mind that Senate Bill 744 is not law. It is merely proposed law. Congress could change the terms of comprehensive immigration reform over the next several months. Also, note that even if comprehensive immigration reform passed tomorrow, DHS and other related agencies would need to prepare and finalize regulations governing the new law before any new benefits will be available. The process of developing regulations could take up to a year.

 

 

Geographic Boundaries of an EB-5 Regional Center and Requirements for USCIS Approval of an I-924

November 7th, 2013 No comments
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The EB-5 Immigrant Investor Program was created with the goal of generating greater economic growth. Regional centers should help grow the economy of the geographic area in which they are located. The regional center model within the EB-5 program offers an immigrant investor already-defined investment opportunities. It reduces the immigrant investor’s responsibility in identifying acceptable investment vehicles.

Under 8 CFR 204.6(e), a regional center “means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.” Some regional centers contain one or more new commercial enterprises.

A regional center seeking approval from USCIS must file an I-924 form with USCIS. The I-924 must clearly describe how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment. USCIS will require that the applying regional center provide verifiable detail regarding how jobs will be created either directly or indirectly. Regional centers applying to USCIS for EB-5 involvement must provide detailed statements regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center.

Applying regional centers should provide USCIS with a detailed prediction regarding how the regional center will have a positive impact on the regional or national economy in general. USCIS will focus on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center. The regional center must convince USCIS that the plans and predictions for the regional center are supported by economically and statistically sound forecasting tools that are valid, including , but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables.

USCIS will review the proposed geographic boundaries of a new regional center and will decide whether they are acceptable. The applicant regional center must establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area. This question can be very fact-specific and the law and regulations do not require any particular form of evidentiary showing. The reasonableness of the proposed geographical boundaries may be demonstrated through evidence that the proposed area is contributing significantly to the supply chain, as well as the labor pool, of the proposed projects.

The EB-5 Immigrant Investor Program is an excellent way for foreign investors to relocate to the United States. Investors have different motivations for wanting to pursue the EB-5 program including having their children raised in the US, retirement, or starting a new business in the U.S. Before starting the process with USCIS, it’s important to have a full understanding of the pros and cons with each immigrant investment option – EB-5, EB-5 regional center, or E-2 visa. There are many misconceptions about the EB-5 program. Contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to better understand your goals and objectives and help you discover which option is best suited to you.

For more information on EB-5 source of funds, click here.

 

Long Beach Client Approved for Marriage Based Green Card After Interview with USCIS Los Angeles

November 5th, 2013 No comments
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I recently attended an adjustment of status interview in Los Angeles for one of our Long Beach clients. In July 2013, we filed the I-130 and I-485 concurrently so that our client could receive a green card in the United States.

He is currently a student at Cal State and he married his long time girlfriend. Because they are both currently students it was difficult to provide USCIS with ample evidence of their good faith marriage. We had a lease agreement, a joint car registration, joint car title and many photos, but that’s it. The young couple still relied on their parents for auto insurance and health insurance.

At the interview, the officer seemed leery at the beginning of the interview. He asked for evidence like joint bank account, but I explained that my client just recently received his social security card, and the couple didn’t have time to open the joint bank account yet. He asked if the parents knew about the marriage, and we told him that the husband’s family knew but the US citizen wife did not know yet. He was very suspicious of this at first, but we explained that the wife’s parents were very traditional and always wanted her to marry someone from the same background. The wife explained that she intended to tell her parents about the marriage, but she wanted to get them comfortable with her husband for the time being.

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In general, USCIS officers are taught to be skeptical if the family of the couple is unaware of the marriage. The lack of family knowledge is a red flag that the marriage might not be bona fides. The officer was open-minded and listened to the rationale. I interjected on several occasions to further explain that the wife felt bad about misleading her parents, but she knew her parents better than anyone. She knew that her parents would eventually come around to accept the marriage, but they needed to be moved in that direction slowly.

After a 30-40 minute interview, the officer approved the case, and explained that the marriage based green card would arrive in the mail within a few weeks. The I-130 visa petition and the I-485 adjustment application were approved.

After the interview, I explained to my clients that because their marriage was less than two years old at the time of approval, the husband would receive a conditional permanent resident card. Two years from now they would need to file additional documentation with USCIS to prove that they were still married and conducting themselves as a married couple would be expected. (For more information on the I-751 process, click here.)

If you are married to a US citizen and want more information about the process to acquire permanent residency through marriage, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and which strategy is appropriate for your situation.

EB-5 Immigrant Investor Program – Investor Must be Actively Engaged in the Management of the New Commercial Enterprise

November 2nd, 2013 No comments
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Under the federal regulations governing the EB-5 immigrant investor program, the immigrant investor must be actively engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or policy formation. The immigrant investor cannot maintain a purely passive role under 8 CFR 204.6(j)(5).

The immigrant investor should provide USCIS with a statement explaining the position the investor will hold. This should include the position title and a detailed description of the position’s duties. Alternatively, the EB-5 applicant can be a corporate officer or member of the board of directors.

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If the new commercial investment is a partnership, either limited or general, the immigrant investor should provide evidence that s/he will be engaged in either direct management or policy making activities.

If the applicant is a limited partner, the limited partnership agreement should grant the immigrant investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act. In such cases, the immigrant investor will be considered sufficiently engaged in the management of the new commercial enterprise.

Active management is not as much of an issue with EB-5 Regional Center cases as the investor’s capital is pooled with other investors for larger projects. Each investor has limited input on how the capital is used and the project is run. The EB-5 program is a complicated area of immigration law and includes many detailed requirements.

If you are considering the EB-5 program, contact The Nunez Firm to schedule a consultation in our Irvine office. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and whether the EB-5 program is right for you.

For more information on proving source of funds for EB-5 investors . . .

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