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Posts Tagged ‘Orange County’

List of U Visa Crimes that Qualify Under Immigration and Nationaly Laws

September 11th, 2013 No comments
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Here is a list of crimes that will qualify a foreign born alien for a U visa provided the individual meets all other U visa requirements:

Abduction
Abusive Sexual Contact
Blackmail
Domestic Violence
Extortion
False Imprisonment
Genital Female Mutilation
Felonious Assault
Hostage
Incest
Involuntary Servitude
Kidnapping Manslaughter
Murder
Obstruction of Justice
Peonage
Perjury
Prostitution
Rape
Sexual Assault
Sexual Exploitation
Slave Trader
Torture
Trafficking
Witness Tampering
Unlawful Criminal Restraint
Other Related Crimes

The other related crimes option should not be disregarded. It is possible to argue that a crime is substantially similar in severity and therefore should qualify the applicant for a U visa.

Joint I-751 Approved for Santa Margarita Conditional Resident Despite Living Apart From Her Husband

September 9th, 2013 No comments
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We were surprised to receive an approval for our Santa Margarita client’s joint I-751 petition to remove conditions on permanent residency. We filed the case in mid-June 2013 and expected that we would be called for an interview because the couple was not currently living together at the time of the filing. I had helped this couple navigate the I-130 visa petition and adjustment of status process two years earlier. Although I knew this couple was involved in a good faith marriage, circumstances arose that forced the couple to live apart against their will, and I knew USCIS would look at the case critically.

In our I-751 packet we did not hide the fact that the couple was living apart. We explained the circumstances thoroughly and included substantial documentation to support our statements. Although I was confident that we would eventually win the case, I did not think we would receive an approval within two months of filing. I certainly did not expect to receive an approval without an interview.

In general, when filing a joint I-751 petition to remove conditions, USCIS wants to see evidence that the couple is living together, commingling assets and conducting themselves as one might expect of a married couple. Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence (Form I-751) with the Service Center having jurisdiction over the alien’s place of residence. USCIS wants to see evidence such as:

- Documentation showing joint ownership of property

- Lease showing joint tenancy of a common residence

- Documentation showing commingling of financial resources

- Birth certificates of children born to the marriage

- Affidavits of third parties having knowledge of the bona fides of the marital relationship

Failure to file the I-751 before the expiration date on the conditional green card shall result in automatic termination of the alien’s permanent resident status and the initiation of removal proceedings against the alien. USCIS has three options when deciding an I-751 case: waive interview and approve, waive interview and deny, or call for an interview prior to deciding the case. In cases in which the adjudicator believes an interview would be useful, the adjudicator forwards the case to the district director along with an assigned fraud level of A, B, or C.

Fraud Level C means there are no technical problems with the case and there is no indication of fraud. Fraud Level B means there are no technical problems but there is something that creates a suspicion about the bona fides of the marriage. Lack of evidence can result in a Fraud Level B classification. Fraud Level A cases involve a strong suspicion of fraud and can result if the petitioner fails to sign the petition, there is insufficient evidence, a large age disparity, married couple not living together, a prior I-751 was denied, or the petition was filed untimely without good reason.

In the current case, our couple was living separately, which caused me to believe that we would need an interview. I felt like we had sufficiently addressed the reason for them living apart, but I thought USCIS would want to speak with them at a minimum before approving the case. The client was thrilled when I told of the good news. I had told her we would definitely be called for an interview, so she was amazed when she found out there would be no interview.

If you need to file the I-751 petition to remove conditions, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process. For more in depth information about the I-751 process, click here.

 

How Does an Immigrant Investor Prove the Establishment of and Investment in a New Commercial Enterprise Under the EB-5 Immigrant Investor Program

September 5th, 2013 No comments
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The EB-5 Immigrant Investor Program presents foreign national investors and entrepreneurs and their qualifying relatives with an opportunity to live and work permanently in the United States through investment in a new commercial enterprise or restructured existing business. In order to obtain conditional resident status, the immigrant investor bears the burden of proof in showing that he or she meets the numerous requirements of the EB-5 program. Two of the more important evidentiary requirements involve proving the establishment of the new commercial enterprise and the investment in the new commercial enterprise.

To show that a new commercial enterprise has been established, the immigrant investor must provide USCIS with articles of incorporation, business trust agreement, joint venture agreement, certificate of limited partnership, partnership agreement, or certificate of merger or consolidation. Other investors will provide a certificate evidencing authority to do business in a state or municipality for the new commercial enterprise. Other evidence that the required amount of capital has been transferred to the existing business and has resulted in a substantial increase in the net worth or number of employees will suffice. This can include agreements, payroll records, financial reports, investment agreements or stock purchase agreements.

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Along with proving that the new commercial enterprise has been established, the immigrant investor must prove that he has committed the required amount of capital to the new commercial enterprise. Such evidence may include, but is not limited to, bank statements showing the amounts deposited in the US business account. Apart from cash investments, immigrant investors may invest assets and/or equipment in the new commercial enterprise. In that case, the immigrant seeking and EB-5 green card should provide invoices, sales receipts, purchase contracts, US Customs commercial entry documents, bills of lading, and/or transit insurance policies. If the investor transfers capital in exchange for stock (voting or nonvoting, common or preferred), evidence of such transfers should be included. Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder’s request. Other evidence may include loan or mortgage agreements, security agreements or promissory notes, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable.

If you are considering the EB-5 process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the process and whether the EB-5 program is a viable option for you.

 

Marriage Based Adjustment of Status Approved for Huntington Beach Couple

August 26th, 2013 No comments
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One of our clients from Huntington Beach was approved for lawful permanent residence based on his marriage to his US citizen wife. The couple met in 2005 while they were both working at a resort in Europe. They began dating shortly thereafter, and after four years, he proposed marriage. The couple married in Italy, and the majority of her family flew over to attend the wedding. He visited the United States on the Visa Waiver Program in late 2012, and the couple came to see me to discuss the process for the husband to obtain permanent residency in the US.

I explained that because their marriage was less than two years old, he could obtain conditional permanent resident status through adjustment of status. I gave them a list of documents and information we would need in order to file. Once we had evidence of their good faith marriage, including photos of their various travels, joint bank account, and shared insurance among other things, we filed the adjustment of status packet, which contained the I-130 visa petition, I-485 adjustment of status application, G-325As, I-765, I-131 and a few other forms, with United States Citizenship and Immigration Services in Chicago, IL. Within a month, he attended his biometrics appointment. His employment authorization card arrived within a few months.

At the interview everything went smoothly. The officer asked questions about how the couple met, when they started dating, who proposed marriage, who attended the marriage and many others. I had prepared my clients well beforehand and they were not nervous at the interview. The officer approved the case on the spot, and advised that my client would receive his conditional permanent resident card in the mail within a month or so.

After the interview, I explained the next step of the process when they will need to file the I-751 Petition to Remove Conditions on his permanent residency. I advised that they would need to collect joint documents over the next couple years so that we can prove that the couple has stayed in a valid marriage since the husband obtained his green card. The couple was very excited by the approval. If you are considering the adjustment of status process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and your spouse to help you better understand the options and whether adjustment of status is viable in your case.

Defining “New Commercial Enterprise” Under the EB-5 Immigrant Investor Program

August 18th, 2013 No comments
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The EB-5 Immigrant Investor Program is a promising mechanism for creating jobs in and injecting foreign capital into the US economy. Congress established the EB-5 program in 1990 to promote the immigration of people who invest their capital in a new commercial enterprise. One question that many prospective foreign investors want to know is what constitutes a new commercial enterprise.

The EB-5 regulations define the term “commercial enterprise” broadly as any for-profit activity formed for the ongoing conduct of lawful business. 8 CFR 204.6(e) provides examples of qualifying commercial enterprises, but the list is not all inclusive. The EB-5 regulation lists sole proprietorships, partnerships, holding companies, joint ventures, corporations and business trusts. If the commercial enterprise is a holding company and its wholly-owned subsidiaries, each such subsidiary must be engaged in a for-profit activity formed for the ongoing conduct of a lawful business. The commercial enterprise must be for-profit. Charitable organizations are not included. Likewise, owning and operating a private residence does not qualify.

Under the EB-5 immigrant investor program, the definition of “new” is defined broadly as well. A commercial enterprise established after November 29, 1990 will qualify as new under 8 CFR 204.6(e). The immigrant investor can invest the required amount of capital in a commercial enterprise that was established after November 29, 1990 to qualify for the EB-5 program.

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If the commercial enterprise was established before November 29, 1990, it still might qualify as “new” if the enterprise will be restructured or expanded through the immigrant investor’s investment of capital. In Matter of Soffici, the BIA held that an investor who purchased a hotel (that was established before November 29, 1990) and continued running it under the same name did not meet the “new” requirement because apart from some cosmetic changes to the decor and a new marketing strategy, it was the same business as before and insufficient restructuring occurred. USCIS has offered examples of what would qualify as sufficient restructuring – a restaurant converted into a nightclub, or a plan to add substantial crop production to an existing livestock farm.

Additionally, a substantial change in the net worth or number of employees resulting from the investment of capital will qualify as an expansion of the existing business. Under 8 CFR 204.6(h)(3), substantial change is defined as a forty percent increase either in the net worth, or in the number of employees, so that the new net worth, or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. Investment in this manner does not exempt the immigrant investor from meeting the requirements related to the amount of capital ($500,000 or $1 million) that must be invested and the number of jobs that must be created.

A new commercial enterprise can support more than one immigrant investor, meaning two or more immigrant investors can join together to create a new commercial enterprise for EB-5 green card purposes. Each investor must invest the required amount of capital and each must create the required amount of jobs. The new commercial enterprise can have owners who are not seeking to benefit from the EB-5 program; however, even those owners must identify the source of their funds and prove that the invested capital was obtained through lawful means. 8 CFR 204.6(g).

If you are considering the EB-5 immigrant investor process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the process and whether the EB-5 program is a viable option for you.

Naturalization Approved for San Clemente Client Despite Absence From US of Over Six Months

July 28th, 2013 No comments
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A San Clemente client was approved for naturalization by the USCIS office in Santa Ana. The client has been a lawful permanent resident since 2007, when he obtained his green card based on his marriage to his US Citizen wife. The only issue raised at the interview was an absence of over six months that occurred four years ago. I informed the officer that we were filing for naturalization as the spouse of a US citizen, therefore the relevant time period was three years as opposed to five years.

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Under INA 319, any person whose spouse is a citizen of the United States . . . may be naturalized upon compliance with all requirements of INA 316 (the standard naturalization section) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years has been living in marital union with the citizen spouse. This section can be helpful if a naturalization applicant has committed certain crimes outside the three year period but within the five year period.

The officer was new and seemed unconvinced, so I asked to speak with the supervisor with whom I have a good working relationship. The supervisor agreed with my assessment. My client passed the naturalization civics test and English test easily. There were no criminal issues and the interview was completed in less than forty-five minutes.

If you are considering the naturalization process, and would like to discuss your case with an experienced immigration attorney, contact The Nunez Firm to schedule a free and confidential consultation. Managing attorney Jay Nunez will take time to meet with you and discuss your case.

Joint I-751 Petition To Remove Conditions on Permanent Residence Approved for Couple in Laguna Beach

July 25th, 2013 No comments
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We just received an approval notice for a joint I-751 petition to remove conditions for our clients in Laguna Beach (Orange County). The USCIS office in Santa Ana approved the case after an interview that I attended with the couple. The couple married in 2010 while the wife was in the US on an H-1b employment visa. The couple retained me shortly after the wedding, and I assisted them in adjustment of status and visa petition process. At that time, they were living in Newport Coast with the husband’s parents. Conditional residence status was approved by the USCIS office in Santa Ana in late 2010.

As required by the Immigration and Nationality Act (“INA”) section 216, we filed the I-751 to have the conditions removed during the three month period preceding the expiration of the conditional green card. We included documents proving the couple lived together as husband and wife in Laguna Beach and conducted themselves as any married couple might. We included auto insurance documents, health insurance documents, life insurance policies, joint tax returns, photos, and utility bills. Additionally, we included statements from neighbors and friends stating that they knew the couple well and saw them together often, including neighborhood parties.

I was surprised when USCIS requested an interview, because many of my most recent I-751 joint petitions have been approved without an interview. The interview went smoothly and the officer didn’t ask many probing or confrontational questions. He said he would need time to review the file more thoroughly, but he intended to approve the case within a few weeks. Less than two months later, we received the approval.

The couple was very pleased with the result, and they look forward to many years together in Orange County. The wife will be eligible to naturalize as a US citizen, if she so chooses within the next several months. The spouse of a US Citizen whose marriage is over three years old and has had permanent resident status for three years is eligible to naturalize (rather than waiting the full five years).

If your deadline for filing the I-751 petition to remove conditions is approaching, contact The Nunez Firm to schedule a consultation. We can help you with the I-751 process to remove the conditions on your permanent residence. Managing attorney Jay Nunez has helped many clients gain approval of their I-751 either as joint petitions or through the use of a waiver of the joint filing requirement.

The Concept Of Deference In EB-5 Immigrant Investor Program Adjudications

July 24th, 2013 No comments
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According to a May 30, 2013 Policy Memo from USCIS, the Agency will incorporate the concept of deference into it’s adjudications of EB-5 cases. This is a welcome development that should, hopefully, reduce processing times, improve predictability, and ensure consistency.

Where USCIS has evaluated and approved aspects of an EB-5 investment, that favorable determination should generally be given deference at a subsequent stage in the EB-5 process. This policy of deference is important in ensuring predictability for EB-5 investors, Regional Centers and commercial projects. Deference conserves scarce agency resources and minimizes duplicative efforts.

USCIS says it will not reexamine determinations made earlier in the EB-5 process, and the earlier determinations will be presumed to have been properly decided. For example, where USCIS has previously found that an economic methodology is a “reasonable methodology” to project future job creation as applied to a specific business project in Southern California, USCIS will continue to afford deference to this determination for all related adjudications provided the related adjudication is directly linked to the California project for which the economic methodology was previously approved. If USCIS approves a Form I-924 or Form I-526 presenting a Matter of Ho compliant business plan and a specific economic methodology, USCIS will defer to the finding that the methodology was reasonable in subsequent adjudications of Form I-526. This allows Regional Centers to provide foreign investors with template business plans, economist reports and other evidence regarding the specific project. The investor can be confident that at least some aspects of the EB-5 case have been previously approved. Of course, the issue of source of funds will be at issue with each individual investor, and the concept of deference will not be incorporated.

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If, however, the underlying facts involving a project have materially changed, deference will not be used. For example, when a new filing involves a different project from the previously approved filing, or the same project but with material changes to the project plan, deference will not be afforded to the prior approval. Materiality of the change involves whether the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision. For example, if an investor’s funds are re-allocated to a different project after I-526 approval, USCIS will not rely upon deference when adjudicating the I-829.

Likewise, if it becomes evident that fraud or misrepresentation was involved or the previously favorable decision was legally deficient, deference will not be relied upon. Absent a material change in facts, fraud, or willful misrepresentation, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology for job creation is reasonable.

If you are considering the EB-5 investor visa program, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the program, options and whether you qualify.

Conditional Permanent Resident Status Approved for Wife of US Citizen in Newport Beach

July 20th, 2013 No comments
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One of my French clients living in Newport Beach was approved for lawful permanent resident status based on her marriage to her husband, a US citizen. The couple started dating four years ago. She often visited the US under the Visa Waiver Program to spend time with him. In October 2011, she visited and he proposed to her. They moved to Newport Beach, California together, and they married in December 2011. I began representing them with the adjustment process in late 2012. We filed the I-485 application for adjustment of status and I-130 visa petition a few months later.

The couple is young and the husband’s income was insufficient to qualify him as the sole sponsor. His father acted as the joint sponsor. Applicants for adjustment of status based on marriage must show that they have sufficient financial support and they are not likely to become a public financial charge. The sponsor, or in this case joint sponsor, must earn at least 125% of the federal poverty guidelines. The husband’s father easily met this requirement, and the USCIS officer did not view my client as likely to become a public charge. The officer reviewed the evidence of good faith marriage and asked many questions about how the couple met, started dating, and decided to get married. Then, he approved the case.

Because the couple has been married for less than two years, she will be a conditional permanent resident for the next two years. During the three month period prior to the expiration of her conditional permanent resident status, the couple will need to file the I-751 petition to remove conditions, so that she can remain a lawful permanent resident. I advised the couple that they will not receive a reminder from USCIS regarding the expiration date of the CPR status.

For now, the young couple is excited to have this step behind them. The wife looks forward to finding a job and they’ve mentioned possibly starting a family in the next year or two. Possibly, they’ll adopt a puppy they said.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you during a confidential consultation and help you determine if adjustment of status is right for you.

Green Card Approved for Brother of US Citizen After Twelve Year Wait – 245i case

July 16th, 2013 No comments
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We received an approval for an I-485 we filed in 2010. The husband and wife are originally from Indonesia. They arrived in the United States in 2000 in valid B-1/B-2 status.The husband’s sister filed an I-130 visa petition before the sunset date for INA 245i. As the brother of a US citizen, the wait time for the priority date to become current was almost a decade.

By the time the interview was scheduled in Spring 2011, the priority date had retrogressed and my clients were no longer current. An additional issue came up at the interview – because my clients’ entry into the US involved misrepresentation, we were forced to file an I-601 waiver to prove extreme hardship to the husband’s mother (a naturalized citizen). We included evidence to show that the mother had medical problems and required her son’s assistance. The officer was satisfied that the mother would experience extreme hardship if the son was not allowed to stay in the US as a permanent resident. The officer approved the I-601, but could not approve the I-485 until the priority date became current again.For the past two years we waited for the priority date to become current and it finally did.

Now, the husband’s green card is approved. The next step will be to file the I-485 for the wife along with an I-601 waiver due to the misrepresentation issue. The couple is excited that the husband’s green card was approved and we can move forward with the wife’s case.

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

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