OC Immigration Attorney

We just received an approval notice for a client of ours in San Juan Capistrano. He was approved for an O-1 visa to teach ballroom dancing for a studio in Orange County. We satisfied the USCIS examiner by showing that our client was a person of extraordinary ability. We provided letters from fellow dance competitors and judges who attested to our client’s reputation in the industry. We detailed his competition results for over a decade showing the sustained success of our client. We provided his awards and competitive wins over the years as well. Additionally, we provided a letter from the American Guild of Musical Artists stating that the organization did not oppose the approval of our client’s visa. They did not believe it would adversely affect working conditions for Americans working in the same field.

We filed the I-129 with the studio as the petitioner. Because our client was already in the United States, we filed the application with USCIS. Had he been outside the US, we would have applied at the consulate.

Three weeks after filing, we received an approval. USCIS was satisfied that our client had achieved sustained international acclaim for his work in DanceSport. They did not issue a Request for Evidence and the case was processed in less than a month.

The client and the studio were very pleased with the result and our client intends to start working with the new employer immediately. If you are considering the O-1 visa process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you understand the process and whether the O-1 visa is right for you.

We recently received an approval for U visas for three of our clients. We filed the U visa packets with the Vermont Service Center almost two years ago. The case was based on the minor daughter being the victim of a qualified crime. Part of the delay was due to USCIS losing our clients’ birth certificate proving she was the daughter of her parents. Ultimately, we had the parents do a DNA test to prove parentage.

If an alien is the victim of a particular crime (not all crimes qualify), and the alien helps to investigate and prosecute the offender, the alien may be eligible for a U visa, which will enable the alien to work legally in the US and adjust status to permanent resident in the future.

It is necessary to have a qualified law enforcement official state that the alien was cooperative with the investigation and prosecution. In this case, the District Attorney’s office signed off on the U visa forms.

The clients were very happy to receive the news after such a long wait. If you are considering the U visa process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you to help you better understand the options available to you.

What guidelines must I meet to be considered for deferred action for childhood arrivals?

Pursuant to the Secretary’s June 15, 2012 memorandum, in order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:

• Were under the age of 31 as of June 15, 2012;
• Came to the United States before reaching your 16th birthday;
• Have continuously resided in the United States since June 15, 2007, up to the present time;
• Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
• Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
• Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case.

How old must I be in order to be considered for deferred action under this process?

• If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
• If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines.
• In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.

Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?

To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Do brief departures from the United States interrupt the continuous residence requirement?

A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States for any period of time, your absence will be considered brief, casual, and innocent, if it was before August 15, 2012, and:

• The absence was short and reasonably calculated to accomplish the purpose for the absence;
• The absence was not because of an order of exclusion, deportation, or removal;
• The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
• The purpose of the absence and/or your actions while outside the United States were not contrary to law.

May I travel outside of the United States before USCIS has determined whether to defer action in my case?

No. After August 15, 2012, if you travel outside of the United States, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS.

Any travel outside of the United States that occurred before August 15, 2012, will be assessed by USCIS to determine whether the travel qualifies as brief, casual and innocent (see above).

Note:  If you are in unlawful status and/or are currently in removal proceedings, and you leave the United States without a grant of advance parole, you will be deemed to have removed yourself and will be subject to any applicable grounds of inadmissibility if you seek to return.

If you are considering the DACA process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process and your eligibility.

This is the question many undocumented young people are asking as the August 15th start date for the Deferred Action for Childhood Arrivals (DACA) process nears. Many people, including fellow attorneys, believe immigration law is simply filling out forms. Why would anyone hire an attorney to fill out forms?

Immigration law is not just filling out forms. It’s more akin to tax law in that it is based on regulations, statutes and ever-changing interpretations by government agencies. There are many pitfalls when filing the forms with the government. If an application or petition includes certain information, it can raise a red flag and start in motion the process of removal and court proceedings. Each question on any immigration form is included for a reason. Answering incorrectly can have substantial consequences for the applicant or applicant’s family members. From my experience, USCIS rarely regards incorrect information provided on a form as merely an error.

Many beneficiaries of DACA (Deferred Action for Childhood Arrivals) will be able to fill out the forms, which are admittedly straightforward; however, there exists a broader context to the DACA process. For example, the forms, when released on August 15th, will likely ask for certain information about family members as well. Issues of confidentiality and potential deportation risks to those family members should be considered in depth.

I cannot tell you how many times I have met with people who either began the immigration process (245i adjustment, marriage-based adjustment of status, consular processing, I-601 waiver) on their own or had a family friend help them. They filed the wrong forms or included incorrect information or suddenly were facing deportation in immigration court. The cost to hire an attorney at the outset, or at least consult with an attorney before moving forward, would have been nominal, but the costs to extricate the person from the situation afterwards, was thousands of dollars.

When you hire an experienced immigration attorney, you are buying peace of mind. You know you have someone on your side that understands the pitfalls and knows how to avoid them. While you will undoubtedly pay less to fill out the forms yourself or hire a notario to file your DACA case, sometimes the cheap gets expensive.

At The Nunez Firm, we will be filing DACA cases later this month. We intend to charge a reasonable flat rate attorney fee that is affordable and fairly compensates us for the time spent preparing the case. We are offering free consultations to help potential DACA beneficiaries better understand the process and how we can help. Managing attorney Jay Nunez will personally meet with you and answer your questions regarding the exciting new changes that are coming about in immigration law.

Whether it was progressive policymaking or a shrewd political move, President Barack Obama’s announcement to stop deportations for some undocumented immigrants in June was hailed as victory by immigrant rights activists. Since the 2001 introduction of the federal “DREAM Act” bill, which would grant higher education and a path to citizenship for undocumented youth, many of these youth have organized one of the strongest online and offline movements in American history. They staged sit-ins in June at Obama campaign offices around the country, putting additional pressure on the Administration and later resulted in Obama’s deferred action announcement.

This month, the Department of Homeland Security will release additional details on how to apply for the deferred action program. What we know so far is that applications will be considered on a case-by-case basis for those who meet specific criteria, such as completing education or military service, meeting a certain number of years of U.S. residency, reaching a certain age, and having a clean criminal record. Those who are granted deferred action get a guarantee that they will not be deported for two years, with an option to extend that period.

Regardless of this promise, many eligible undocumented youth still remain in danger of eventual deportation. For instance, Daniela Pelaez, a high school valedictorian from Florida, found out that she may still be deported as she prepares for her freshman year at Dartmouth College this fall, with immigration authorities promising only to hold off for two years before initiating deportation proceedings again.

The feeling that deferred action is only temporary has caused frustration among immigrant rights advocates and undocumented immigrant communities, who continue to be on alert.

Deferred action serves as only a temporary solution to our nation’s problem of undocumented immigration. Immigrant youth hesitate to apply for fear that if Obama is not re-elected, they may fall to the whims of Mitt Romney, who has vowed to veto the DREAM Act should it ever reach his desk as president.

“As it [deferred action] is a policy change, a new administration could simply reverse the policy,” Uy said. “Further, there is no guarantee as to what will happen to the families of eligible students, as the guidance does not contemplate what the government will do with the information gathered from the eligible students in their applications. As such, many students and youth are afraid to apply at this point.”

On March 30, 2012, the Department of Homeland Security (DHS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register outlining its plan to reduce the time U.S. citizens are separated from their immediate relatives (spouses, children, parents) while those family members are in the process of obtaining an immigrant visa to become lawful permanent residents of the United States.

THIS NEW PROCESS IS NOT YET IN EFFECT

Since the announcement, USCIS has become aware of public misperceptions about the rule-making process and when the provisional unlawful presence waiver process will take effect.   USCIS has issued a number of public education materials to combat these misperceptions including flyers and Public Service Announcements in English and Spanish. These public materials can be found on the USCIS website on the right-hand column.

·         Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective.

·         Be aware that some unauthorized practitioners of immigration law may wrongly claim they can currently file a provisional waiver application (Form I-601) for you. These same individuals may ask you to pay them to file such forms although the process is not yet in place. Please avoid such scams. USCIS wants you to learn the facts about protecting yourself and your family against scammers by visiting http://www.uscis.gov/avoidscams

We just received an adjustment of status approval for an Irvine client, who is the wife of a US citizen. The couple has known each other for decades, but started dating about five years ago when they were reacquainted in Canada. She lived in Canada and he lived in California. They traveled to visit each other often and when she visited for Thanksgiving in 2011, he proposed to her saying he didn’t want her to leave again and he wanted to start his life with her in the US. She accepted.

Earlier this year, they came to us asking about the immigration process. We explained the process and what to expect including the various fees and information and documents required. After being retained, we collected the documents and compiled the packet for USCIS including the I-130 visa petition and I-485. Everything processed in a timely fashion and within four months of filing the packet with USCIS, we were scheduled for an interview in Santa Ana.

At the interview the officer asked questions about how they met, when they started dating and the marriage proposal. The couple answered the questions honestly and we provided evidence of the good faith marriage including life insurance policies, shared health insurance and joint bank accounts. The officer was satisfied that the marriage was valid and approved the green card on a conditional basis. Because the marriage occurred within the last two years, the couple will need to file an I-751 two years from now and provide more evidence that they are still living together and conducting themselves as a married couple would be expected.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your options and help you better understand marriage based adjustment process.

We recently received an approval notice for an employee of one of our corporate clients in Irvine. The employee was approved for H-1B status, which will begin on October 1, 2012. Currently, the employee is on Optional Practical Training after graduating with a master’s of science degree from a California university in Electrical Engineering. His OPT will expire in a couple of months. However, because his OPT will expire after the filing of the H-1B petition, he will be eligible to continue working for the employer until his H-1B status begins in October. This rule is known as the OPT “Cap Gap” Extension and it allows OPT workers to continue working despite the break (or gap) between OPT expiration and H-1B start date.

Because the employee has a Master’s Degree he qualifies under the Master’s Cap rather than the standard H-1B cap. This benefits the employer because it will not count toward H-1B dependency calculations. We processed the case under premium processing, which guaranteed a decision within two weeks.

The employee and employer were pleased with the result. The next step is to have the employee obtain the Cap-Gap extension through his school.

If your company is considering the H-1B process for an employee or potential employee, contact The Nunez Firm to discuss the feasibility of doing so. Managing attorney Jay Nunez will meet with you personally to help you better understand the process, costs and timeline.

The Nunez Firm just received the good news that an E-2 visa was approved for a French client through consular processing. The E-2 visa is for foreign investors who wish to immigrate to the US on a temporary basis. The nationality of the investment enterprise must be at least 50% from the foreign country, and the source of the funds must be legal. In this case, we were able to satisfy the consular officer that the funds were obtained legally through prior businesses owned by the client.

The client wants to open a business in Orange County. We helped him find a location, and once he was satisfied, he put the funds in escrow with instructions that the escrowed funds were contingent on the approval of the E-2 visa. In general, E-2 adjudicators want to see that the investment money is “at risk,” but escrowed funds, if organized correctly, suffice to meet this requirement.

The substantiality of the investment is always an issue, and the adjudicator will generally focus on:

• the amount of the investment funds compared with the cost of purchasing or creating the enterprise
• the amount normally considered sufficient to ensure the investor’s commitment to the success of the enterprise
• the magnitude of investment to support the likelihood that the investor will successfully develop and direct the enterprise

The investor must also satisfy the adjudicator that the enterprise has the present or future capacity to generate more than minimal living for investor and family. Adjudicators will consider several factors including whether the investment will expand job opportunities, generate income substantially above what would be considered a living, whether the investor will work merely as a skilled or unskilled worker and whether the investor has other sources of income. Generally the investor must manage the business with hands-on management.

E-2 employees are also eligible for E-2 visas, although this was not at issue in this case. The client is very happy with the outcome and plans to move to the US within the next month after he wraps up his affairs in France.

If you are considering the E-2 visa process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you confidentially and help you better understand the options available to you.

We just received an approval notice for adjustment of status based on a National Interest Waiver. The National Interest Waiver is available to EB-2 category aliens that can show that the alien seeks employment in an area of substantial intrinsic merit, the benefit to the United States will be national in scope, and the national interest would be adversely affected if a labor certification were required. Having exceptional ability in a given field is not sufficient on its own to grant the waiver. The alien self-petitioner must prove that the benefit his/her skills would provide substantially outweighs the inherent national interest in protecting US workers, which the labor certification process achieves.

In general, USCIS will look at seven evidentiary factors when adjudicating a National Interest Waiver:

1. Improving the US economy
2. Improving wages and working conditions for US workers
3. Improving education and programs for US children and underqualified workers
4. Improving health care
5. Providing more affordable housing
6. Improving the US environment and making more productive use of national resources
7. Interested government agency request

Generally with an EB-2 case, the alien applicant must have a job offer and labor certification; however, the National Interest Waiver, if approved, waives this requirement. The EB-2 category benefits members of professions holding advanced degrees or their equivalent, or who because of their exceptional ability in the sciences, arts or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the US and whose services are sought by an employer in the US. Due to backlogs in the EB-3 category, the EB-2 category is highly sought after.

Our client, who entered the US on a visitor visa, was very happy to hear about the approval of the green card. USCIS adjudicated the case in approximately one year, but our client received work authorization about three months after we filed the case. Although we received a Request for Evidence, we were pleasantly surprised that it did not include overly burdensome requests and merely asked for any updated information on job offers and publications.

The client has since accepted a job offer from an American university and he and his wife are excited to start their lives in the United States with full confidence that this will be their new home indefinitely.

If you are considering employment based permanent residency, the EB-2 process or a National Interest Waiver, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your case and the options available to you.