Almost all USCIS filing fees are scheduled to increase two months from now. Some fees doubling or more while others jump by about 20%. If you are contemplating filing for an immigration benefit, it's best to file within the next couple months to avoid the higher fees. For a full list of the fee increases, click here.

We recently received great news that an I-601A waiver was approved for one of our clients from the Philippines. He entered the United States without inspection or visa over a decade ago. He met his husband in 2011. The couple married in 2013.

Even though our client was married to a US citizen, he was ineligible to adjust his status to permanent resident because of his illegal entry into the country. When the couple came to us, we advised that his best route was through an I-601A extreme hardship waiver. We explained that in order to get approved for the I-601A waiver, we must show that it would cause the US citizen spouse extreme hardship if his Filipino husband is not permitted to live in the United States with him.

The US citizen spouse has lived his entire life in the United States. He has three children from a previous marriage that lasted 18 years. We showed that he had a strong relationship with his children. We also showed that he relied on his spouse for emotional support because he previously had problems with drugs and his spouse helped him stay clean. We pointed to his impressive resume and career as an attorney and public figure and his extensive ties in Orange County.

We showed that the alien spouse had extensive family ties in the United States as well. He had a strong record of employment as a nurse and had no prior problems with immigration or law enforcement. He was and is an upstanding member of the community.

USCIS agreed and approved the I-601A waiver. The next step will be to consular process the case and have our client travel back to Manila to attend the consular interview and have his medical exam taken.

If you are married to a US citizen or lawful permanent resident, contact Nelson & Nunez to schedule a consultation. We can help you better understand your situation and what options are available to fix your immigration status. We have helped many gay and lesbian couples solve their immigration situations over the last few years since the Windsor Supreme Court Decision.

Our client is originally from Vietnam. Her father was in the military and stationed in Vietnam in the 1970s. Her mother was Vietnamese. Six months after our client's birth, the fall of Saigon occurred. Her mother, two brothers and her were evacuated on helicopters as part of Operation Frequent Wind, whereby 40,000 American civilians, military and South Vietnamese individuals escaped Vietnam.

Our client was designated a refugee and given lawful permanent resident status.

In the early 90s, our client moved to a central American country for 4 years. When she tried to return to the United States, she was told she had abandoned her permanent resident status and she was denied entry into the U.S. Two years later, she obtained a fiance visa and entered the country, but she never married her fiance.

She came to us several years later. Because she entered on a K-1 fiance visa, she could not adjust status through any other means. We decided to pursue citizenship claiming that because her father was a U.S. citizen she was a U.S. citizen at birth. The problem was that we did not have a birth certificate and we could not locate her father.

Years later, we finally tracked down her father. He agreed to do a DNA test and used that test to prove that our client's father was a U.S. citizen. We also tracked down the father's high school and elementary school records from over half a century ago to prove that he lived in the U.S. as a young man.

After over 40 years living in the United States, our client was deemed a U.S. citizen and provided with a certificate of citizenship last week.

If you have a complex immigration case, contact Nelson & Nunez to schedule a consultation. We will meet with you in person to determine if there is a path to legalize your immigration situation.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.
Read the advance version of the notice of proposed rulemaking: International Entrepreneur Rule. Once the notice of proposed rulemaking is published in the Federal Register, the public will have 45 days from the date of publication to comment. To submit comments, follow the instructions in the notice.

“America’s economy has long benefited from the contributions of immigrant entrepreneurs, from Main Street to Silicon Valley,” said Director León Rodríguez. “This proposed rule, when finalized, will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.”

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

- Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
- Whose startup was formed in the United States within the past three years; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
           ->Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
           ->Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
           ->Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

We recently helped one of our Irvine clients in obtaining US Citizenship. Several years ago, her husband approached us about obtaining a green card for her. The couple had married a few years earlier and she was ready to pursue lawful permanent residency through adjustment of status. Everything went smoothly and she was approved for the green card.

After three years in lawful permanent resident status, she was eligible to naturalize as a US citizen. The general rule is that an alien must be a permanent resident for five years before becoming naturalization eligible, but the spouses of US citizens need only wait three years. (VAWA approved victims of domestic violence need only wait three years as well.)

We prepared and filed the naturalization and I attended the interview with her at the Santa Ana office of USCIS. Everything went smoothly and the case was approved on the spot. Now, we are waiting for the oath ceremony notice.

Once she takes the Oath, she will be a US citizen. She wants to petition for her elderly mother to become a lawful permanent resident, so we will likely file that within the next few months. The total processing time for a consular processing case is about 8-9 months.

An immigration judge recently granted our motion to dismiss so our client can process his green card through USCIS. Our client has been in immigration court in Los Angeles for almost 4 years now. In 2015 we helped his daughter naturalize to become a US citizen. Shortly thereafter we helped her file a visa petition for her father as the parent of a US citizen. Once the I-130 visa petition was approved, we filed a motion to dismiss the father’s deportation case. The judge agreed that it was in the best interest of the court and the father and granted the motion.

The next step will be for us to file an I-485 application for a green card with USCIS. The father entered the country legally on an L-1 visa almost two decades ago, so he is eligible to adjust status without leaving the United States or needing an I-601 waiver of any kind.

Now that his immigration court case is terminated, we anticipate no further hurdles in obtaining his green card so he can stay in the US with his family.

The rule change that was first proposed in July 2015 will go into effect on August 29, 2016. The previous rule required that I-601A waiver applicants show that refusal of a visa would cause a US citizen spouse or parent extreme hardship. Hardship to permanent resident spouses or parents was not considered a valid basis for the waiver. With the new rule, applicants can qualify for the waiver by showing hardship to US citizen or permanent resident spouses or parents. The new regulations can be found here. This will open the door to many more I-601A applicants.

Department of State, charged with operating the US consulate in Ciudad Juarez, recently released notes and information regarding the processing of visa applications at the Ciudad Juarez office.

For years the Department of State has paid attention to the presence of tattoos on visa applicants, but recently they have become more strict on the issue.

Although tattoos are not a basis for denying an individual a visa, the Department of State takes the position that certain tattoos may indicate gang involvement. INA §212(a)(3)(A) provides an inadmissibility ground based on “reasonable ground to believe [the applicant] seeks to enter the United States to engage in . . . unlawful activity.”

The FBI provides annual training to consular officers in Ciudad Juarez regarding which tattoos potentially indicate gang-related affiliations. Ciudad Juarez officers look at a variety of factors for indications of gang membership, not just tattoos (e.g. shaved head or scars indicating bullet wounds or knife attack).

When a visa applicant applies for an immigrant visa at Ciudad Juarez, a medical exam is required. The panel physician will report all skin abnormalities (tattoos, scars, etc.) discovered during the exam. The visa applicant must remove all clothes during the exam. Blacklights are used to detect invisible tattoos and tattoos that have been removed or covered up by other tattoos. Doctors do not make a determination on the symbolism of the tattoos, but instead report any skin abnormalities in the Medical Report.

When the applicant attends the visa interview at the consulate, the officer will ask the applicant to explain the significance of any suspicious tattoos and scars. If the officer suspects gang involvement, he will report the case to the Visa Office for an advisory opinion, which could take several months (keep in mind that the visa applicant cannot return to the United States until the visa is approved).

If you are considering consular processing a visa at Ciudad Juarez or another consulate and you have tattoos, you should consult an immigration attorney to learn more about the potential delay or denial of the visa. Of course, only you know the true significance of your tattoo, but beware that anything that can be interpreted as gang-affiliated could result in substantial delays or even a denial. Remember – just because you have an I-601A waiver approval and no criminal record, you may still be denied based on INA §212(a)(3)(A).

We recently received an approval for a joint I-751 we filed in fall 2015. I originally represented the couple with their marriage-based adjustment case. The wife had entered the United States legally but overstayed. The husband was a US citizen and they had met at work. They married after living together for a few years.

Because their marriage was less than two years old at the time of adjustment, she received a conditional resident card with a two year expiration.

After two years, they came back to me to handle the removal of conditions process. We prepared the evidence to show that the couple was still living together and the marriage was entered in good faith. A few months later, we received an interview notice. However, just a few days before the interview USCIS contacted me and canceled the interview. Today we received an approval of the I-751 application.

The couple is very excited and they plan to start the naturalization process for the wife within the next few months.

In Erler v. Erler, the plaintiff ex-wife sued her former husband to enforce the I-864 Affidavit of Support he signed as part of the adjustment of status process. By signing the affidavit of support, the affiant promises to support the beneficiary at 125% of the poverty line.

In the Erler case, the couple entered into a prenuptial agreement prior to marrying and the family law court order for the divorce reflected this; however, the 9th Circuit panel held that the defendant husband agreed to provide the plaintiff with any support necessary to maintain her at an income that was at least 125% of the Federal Poverty Guidelines for her household size. The affidavit became a contract between the defendant sponsor and the US government for the benefit of the plaintiff.

The 9th Circuit panel found that despite the divorce, the defendant had a continuing obligation to support the plaintiff. The Court held that the income of the plaintiff's adult son, with whom plaintiff was living, could not be included in the household income equation when determining how much support the ex-husband must provide. Essentially, the husband must provide support to the beneficiary at the amount of 125% of the Federal Poverty Guidelines regardless of other income being earned in the beneficiary's household.

This is an important case that family law attorneys and US citizens considering the spousal adjustment of status process should understand before signing the I-864 affidavit of support.

The Supreme Court is set to rule on President Obama's Deferred Action for Parents of Americans this week. Most commentators expect the Supreme Court to announce the ruling on Thursday, June 23, 2016 at 10 am.

Analysis of the oral arguments suggests that four justices are likely to rule in favor of DAPA (Ginsburg, Sotomayor, Breyer, Kagan) while Thomas and Alito will likely rule against DAPA. Roberts and Kennedy are the unknowns in this case. For DAPA to go into effect, either Roberts or Kennedy must approve of it.

We just received an approval for a marriage-based adjustment of status case in Orange County. Our clients were a young married couple and the wife was from Canada. They met several years ago and started dating. They married earlier this year and we handled the visa petition and marriage-based adjustment application.

Because they just recently graduated college and did not make enough money, we used a joint sponsor to reach the income requirement of the I-864P and avoid a public charge inadmissibility denial.

Approximately four months after we filed the adjustment packet, we attended the adjustment interview at USCIS in Santa Ana. The interview went smoothly. The couple was quizzed about their relationship history and each other's biographic information. We presented substantial documentation in support of the marriage including joint insurance, joint apartment lease, car ownership, bank accounts, joint taxes and a lot more.

The interview lasted about 45 minutes, and the officer granted the case on the spot. Because the marriage was less than two years old at the time of the interview, the wife's green card will be a conditional resident card that is valid for two years. After the interview, I explained to them that they must file an I-751 removal of conditions during the 90 days preceding the two year expiration date. I reviewed the documents and evidence they should collect during the next two years.

They were very happy with the result and I explained to them that she should receive her green card within three weeks. If you are considering marriage-based adjustment of status filing, contact Nelson & Nunez to schedule a consultation. We can answer your questions and help you determine whether it makes sense for you to hire an immigration attorney to assist with your case.

At this time of year many employers are receiving the unfortunate news that their valuable foreign workers were not selected in the H-1B lottery. Many of these employees are recent graduates working as student visa holders under the optional practical training (OPT) program. In some cases the employee’s twelve month OPT (and corresponding work authorization) will expire within the next few months.

As has been the case the last four years when the H-1B program has been oversubscribed, employers that lose the lottery panic and scramble to find ways to keep these dynamic, young, foreign workers. In an effort to address the H-1B problem, DHS has changed the regulations regarding OPT. Historically students on OPT were allowed twelve months of work authorization. In 2008, students with STEM (Science, Technology, Engineering and Math) degrees were permitted to extend their work authorization for an additional 17 months. On May 10, 2016, the STEM OPT extension was increased an additional seven months allowing STEM degreed students a total of 36 months of optional practical training.

Although the new STEM OPT rules allow employers and their would-be H-1B employees multiple bites at the lottery apple, they also impose several new requirements. The following provides a brief description of a few of the new features.

Employers Must Be E-Verify

As with the 2008 STEM OPT extension, the employer must participate in the E-Verify program for the STEM employee to obtain the 24 month OPT extension. A newly imposed amendment requires that the specific worksite employing the worker must use E-Verify.

Employer Must Develop A Training Program For Each STEM OPT Employee

As part of the new extension application, the employer must create a training program  that states the specific goals for the STEM OPT period and how the employer and employee plan to achieve them. The plan should identify the skills, knowledge and techniques the employer intends to teach the worker and explain how the training and job duties are tied to the employee’s STEM degree.

The employer must provide compensation details and certify that the alien worker’s compensation align with similarly situated U.S. workers.

Evaluations

Initially the Department of Homeland Security aimed to have the employer and student provide evaluations every six months; however, the final rule reduced this requirement to twelve months. At the conclusion of the first twelve months of STEM OPT, the employer and employee must provide a performance evaluation to the designated school official (DSO) of the student’s school. At the end of the 24 month STEM OPT, a second evaluation must be completed.

On-Site Inspections by ICE

As part of the new rule, Immigration and Customs Enforcement (ICE) has the authority to inspect employer worksites to ensure implementation of the training program and conformity with all applicable regulations. ICE need only provide 48 hours’ notice prior to inspection. If the inspection results from a complaint, the 48 hour notice requirement is waived.

The 24 month STEM OPT extension program is a much-needed band-aid to temporarily help the employers and alien workers effected by the H-1B oversubscription problem; however, employers considering the new program must understand the added requirements and the consequences for not abiding by them.

To extend your STEM OPT employee’s work authorization, contact John Nelson or Jay Nuñez at 949-833-2616.

We recently received an approval for a joint I-751 Petition to Remove Conditions we filed in fall 2015. I originally represented the couple with their marriage-based adjustment case. The wife had entered the United States legally but overstayed. The husband was a US citizen and they had met at work. They married after living together for a few years.

Because their marriage was less than two years old at the time of adjustment, of status she received a conditional resident card with a two year expiration.

After two years, they came back to me to handle the removal of conditions process. We prepared the evidence to show that the couple was still living together and the marriage was entered in good faith. A few months later, we received an interview notice. However, just a few days before the interview USCIS contacted me and canceled the interview. Today we received an approval of the I-751 application.

The couple is very excited and they plan to start the naturalization process for the wife within the next few months.

After years of fighting to stay in the U.S., one of our clients was approved for his green card today. I originally took this case in 2009 when my client was in deportation proceedings. He was married to a US citizen, but they had not filed any paperwork. We filed the I-130 visa petition, and the couple was interviewed. The I-130 was approved.

We went back to the immigration court and asked the judge to terminate proceedings so my client could file the I-485 application to adjust status with USCIS. The immigration judge agreed.

We filed the adjustment of status in 2012. In 2013, USCIS requested an I-485 interview with my client and his wife; however, my client's US citizen wife was very ill at that time and she could not attend. I asked them to reschedule the interview. She died a few months later.

The case fell into the cracks and, despite numerous attempts to move the case forward, nothing happened for almost two years. Finally, earlier this year, USCIS scheduled a second interview for the I-485 application. My client and I attended the interview in Santa Ana and provided evidence that my client's wife had passed away. We provided a legal brief explaining why my client was eligible to adjust to permanent residency despite his wife's death. Since that interview, we followed up with the officer and supervisor and requested that the case be approved.

Today, we received the great news that my client would be approved for permanent residency. After almost 15 years, he will be able to visit his family in Kenya with the peace of mind that he can return to the US safely to resume his life.

Fashion models are typically admitted into the United States as nonimmigrants by obtaining an H-1B visa or an O-1 visa.  Most models obtain H-1B visas because it requires a lower standard.  However, it is important to note there is a limited number of H-1B visas available per year and time is of the essence when filing an H-1B visa.

In order to apply for an H-1B visa, a model must meet certain criteria.  Fashion models that apply under the H-1B category, must demonstrate they are of distinguished merit and ability.  8 CFR 214.2 (h)(1)(i).  In order to establish this, the fashion model must show they are prominent in the field.  Prominence is defined as a “high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered.” (Matter of Shaw, 11 I&N, Dec. 277 (DD 1965) at 280).  In other words, the fashion model must be well-known, leading, or renowned.  A fashion model establishes “prominence” by presenting specific documentation.  For example, the fashion model must show any two of the following:

(1) The model has national or international recognition, which can be evidenced by articles, news stories, or critical reviews;
(2) The model will be performing for employers that have a distinguished reputation;
(3) The model has recognition by experts or critics; or
(4) The model commands a high salary in relation to others.

A model agency must file for the model’s visa as the model’s employer.  This means the agency may “hire, pay, fire, supervise or otherwise control the work” of the model.  8 C.F.R. §214.2(h)(4)(ii).  As the employer of the model, the agency must prove the model will be performing prominent services.  According to 8 C.F.R. §214.2(h)(4)(vii), the petitioner (employer or agent) must show a copy of the written contract or a summary of the terms of the oral agreement.  The petitioner must also show that the services to be performed are for a distinguished event, production, or organization that has a distinguished reputation.  
Fashion models will also have to comply with the other rules relating to an H-1B in a specialty occupation.  For example, the employer or agent must obtain an approved labor condition application stating the employee (model) will receive the required wage rate.  Further the employer must file a petition for the model with USCIS.  

The attainability of the H-1B visa is greater than the O-1 visa because the model need only establish they have “distinguished merit and ability” rather than “extraordinary ability” in business.  While the model still needs to prove some level of recognition, it is not at the level an O-1 visa would require.  This leaves more room for the models who have not yet reached the notability of the elite models such as Gisele Bündchen or Adriana Lima.  In order to prove recognition in their field, it is important for the model to retain tear sheets from catalogs, brochures, magazines, etc.  If the fashion model is not able to obtain the H-1B visa because the H1-B cap has been filled, she or he may also try obtaining a nonimmigrant visa through the O-1 category.

Although the O-1 category does not have a quota, it requires a higher standard.  Here, rather than the model establishing the lower standard of “distinguished merit and ability,” the model must prove they have an “extraordinary ability in business.”  The INA defines an alien with extraordinary ability as “one who has demonstrated national or international acclaim … a record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, and seeks to enter the United States to work in the area of extraordinary ability.”  One would think the model must demonstrate “extraordinary ability” in the arts, however the Administrative Appeals Unit concluded this is not the case.  In Matter of Ford Models, Inc., the AAU specified that a model would obtain an O-1 visa only as it relates to “business” and not the “arts.”    (Matter of Ford Models Inc., EAC 92-171-50797 (AAU Oct. 16, 1992), discussed in 70 No. 6 Interpreter Releases 180-81 (Feb. 8, 1993)).

According to 8 C.F.R. §214.2 (o)(3)(iii), the fashion model must prove extraordinary ability by documenting any 3 of the following criteria:

1.    Receipt of national or international awards;
2.    Membership in an organization that requires outstanding achievement;
3.    Publications about the applicant in the profession;
4.    Judgment of the work of others;
5.    Original work of major significance in the field;
6.    Evidence of authorship of scholarly work;
7.    Evidence that she or he has been employed in an essential capacity at an organization with distinguished reputation; or
8.    Has or will command a high salary.

Because of the heightened standard, the O-1 category would be more attainable to the very top fashion models.  In addition to demonstrating extraordinary ability, a fashion model must have either a United States employer or a United States agent file an O-1 petition with USCIS for the fashion model.   The petition may not be filed more than one year, but at least 45 days before the employment.  The petition must also include consultations regarding the fashion model’s proposed work and qualifications, which should be written by an appropriate peer group (persons with expertise in the field).  
 

The Court in Bonilla v. Johnson concluded that "the plain language of 8 USC 1254a(f)(4) and 1255(a) provides that an alien who enters this country without inspection, admission, or parole, but who subsequently is granted TPS (temporary protected status), is eligible for adjustment of status under 8 USC 1255, provided that he or she meets the other requirements set forth in 1255(a). Because the Government's interpretation of 1254a(f)(4) and 1255(a) is contrary to the plain language of these statutes, the Court concludes that the agency's decision in this case was arbitrary and capricious. Accordingly, the Court reverses the agency's decision and remands to USCIS for further review consistent with this opinion."

TPS is currently available to citizens and nationals of:

- El Salvador
- Guinea
- Haiti
- Honduras
- Liberia
- Nepal
- Nicaragua
- Sierra Leone
- Somalia
- South Sudan
- Sudan
- Syria
- Yemen

We recently received an approval for a 10 year marriage based green card. My client first came to me years ago inquiring about Deferred Action for Childhood Arrivals (DACA). He was born in Mexico but came to the United States at a young age. He entered the US illegally without inspection. He graduated high school and received a degree from a Cal State school. He was married to a US citizen at the time.

We obtained DACA and a work authorization card. Once he had DACA, we applied for Advance Parole so he could visit an ailing family member in Mexico. He visited Mexico for a few days, then returned to the United States using the Advance Parole.

Because his last entry to the US was legal (using the Advance Parole), we were able to apply for a marriage-based adjustment of status. Normally a person who entered the United States illegally is ineligible to adjust status and must obtain an I-601A waiver before he can receive a green card; however, our client was eligible because his most recent entrance into the US was lawful.

We attended the adjustment interview in San Bernardino and everything went smoothly. His case was approved and he received his green card this week.

Our client obtained lawful permanent resident status through his marriage to his US citizen wife in 2008. In 2010, the couple filed the I-751 petition to remove conditions on residency and USCIS approved it.

In 2011, he filed the N-400 naturalization application after three years of permanent residency and marriage to his US citizen wife. USCIS interviewed him as part of the naturalization process. After 18 months of waiting, USCIS denied his N-400 stating that he had not been living in marital union for the requisite 3 years. USCIS stated that according to site visits and investigations, they had determined that he had been living with the mother of his children rather than his wife since before the filing of the I-751. USCIS also denied his N-336 Hearing on Denied Naturalization on similar grounds.

We were hired to handle the federal district court litigation.

In court, the government OIL (Office of Immigration Litigation) attorney argued that because our client did not live with his wife under the same roof during the three years prior to filing naturalization, he was ineligible. Additionally, he questioned whether our client committed fraud by filing the I-751 jointly with his wife when our client was not living with her. The OIL attorney argued that our client was not in a marital union during the requisite three years because the couple did not live together the whole time.

The judge disagreed. He found that although our client was not living physically together during the whole time, they continued to live in a marital union because they were still legitimately married and were trying to work on their marital differences. He stated that the couple may have been informally separated but more factual development is necessary to determine if the separation signified a clear end to the marital union. Read the court’s decision here.   

We recently received an approval for an O-1 visa for one of our ballroom dance instructors. He’s originally from Australia and has competed professionally for many years. He hired another immigration attorney to file his O-1. That attorney filed under the O-1B classification, but USCIS denied the case. USCIS issued a Request for Evidence (“RFE”) stating that it did not regard ballroom dance instructors as artists, but instead classified them as athletes.

We re-filed the case as an O-1A and it was approved within three weeks without an RFE being issued.

Our client, whose record includes multiple national and international titles and headline performances in well-known dance productions, was very pleased with the result. As I write this, he is attending his consular interview in Australia so he can obtain his visa to enter the United States.

We just received approvals for two of our clients. They arrived in the United States in 1992 and crossed illegally. They have lived in the US ever since and have three children – two US citizens and one DACA-approved. In 1997, the husband’s brother, a US citizen, filed a fourth preference petition for the sibling of a US citizen. The wife was a derivative beneficiary under that petition.

Because the couple is from Mexico, the wait time for fourth preference processing was almost 20 years. Once the priority date became current, we filed the application for adjustment of status.

The couple had no prior deportations or criminal issues. Because the brother filed the petition prior to 1998, the couple was eligible to adjust status based on INA 245i. As a general rule, an alien must have entered the United States legally in order to adjust status to lawful permanent resident. Additionally, the alien must have maintained lawful status while in the US and not worked without authorization. However, INA 245i created an exception to the general rule if the alien is the beneficiary of a family based petition or employment based labor certification filed before April 30, 2001. The alien must pay an additional $1000 penalty to apply via INA 245i.

The interview went smoothly. Our clients were well-prepared and, of course, I was present to make sure they were treated fairly and felt comfortable. At the conclusion of the interview, they received their approval notices.

Now that they are permanent residents, they plan to file a petition for their non-US citizen son. His case will take several years to process, but he will benefit from 245i as well.

Employers looking to terminate an H-1B employee must make certain they follow regulations unique to H-1B employees.  If an employer wishes to terminate an H-1B employee before their authorized period of stay, the employer may be liable for the employee’s back pay wages for the remaining period of stay, transportation costs back to the employee’s home country, and/or other remedies.  In order to avoid such penalties, the employer must carry out a “bona fide termination” of the employment relationship. (INA § 655.731(c)(7)(ii)).  A bona fide termination is executed only after the employer satisfies three requirements. The employer must: (1) notify the employee of the termination of employment, (2) notify USCIS that the employment relationship is terminated, and (3) provide the employee with the reasonable cost of return to their home country. (Limanseto v. Ganze & Compny, OALJ 2011-LCA-00005 at 6).

The first step in executing a “bona fide termination” is to expressly inform the employee that the employment relationship is terminated.  This notification must be clear and unequivocal.  The burden of proving the end of back wage liability remains with the employer. (Mao v. Nasser Eng’g & Computing Sevs. ARB 06-121, (ALJ 2005-LCA-036at 24)).  As such, it is critical the employer keep any correspondence notifying the employee of termination.

Second, the employer must notify USCIS that the employment relationship terminated.  Under INA §101 (a)(15)(H), the petitioner [employer] shall immediately notify the Service [USCIS] of any changes in the employment of a beneficiary [employee] which would affect eligibility under INA §101 (a)(15)(H).  Terminating the employment relationship is considered a change of employment requiring USCIS notification. When an employer terminates the employment relationship, they are essentially withdrawing their petition.  For this reason, it is important to notify USCIS immediately.  “Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage.” (Limanseto v. Ganze & Company, OALJ 2011-LCA-00005 at 6-7).  Notifying USCIS the employee relationship is terminated, allows USCIS to cancel the petition and relieves the employer of any liability to pay the employee.  In a case where the employer was found not to have executed a bona fide termination for failure to notify USCIS and was found liable for backpay, the Court stated, “for the price of a postage stamp, the Employer often can absolve itself of further liability.” Id. at 7.

If the employer decides not to terminate the relationship and merely ceases to pay the employee, the employer can be found liable for “benching.”  “Benching” is a term used to describe when an employer stops paying an employee and places the employee on non-productive status due to a decision made by the employer (ex. lack of work). (20 C.F.R. § 655.731(c)(7)(i)).  If an employee is on non-productive status and the decision was not based on the employee’s voluntary request to be absent from work, (ex. voluntary resignation or going on vacation) the employer must continue to pay the employee the required wage rate.  (Admistrator, Wage and Hour Division v. Itek Consulting, Inc., 08- LCA-46 (ALJ May 6, 2009 at 10).  However, if the employer decides to terminate the employment relationship, notifies USCIS that there is a termination, and follows the other steps required to execute a “bona fide termination,” the employer is no longer obligated to pay the employee the required wage rate. (INA § 655.731(c)(7)(ii)).

Lastly, the employer must provide the employee with reasonable cost of transportation to his or her home country.  (Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ. 2004- LCA- 006 at 11).  The employer may cover the cost of return to the employee’s home country by purchasing a one-way plane ticket for the employee back to his/her last place of foreign residence. (8 C.F.R. 214.2 (h)(4)(iii)(E)).  It is important to note that the employer is obligated to pay for the cost of return transportation only if the employee is terminated before the period of authorized stay.  If the employee voluntarily terminates his employment prior to the end date of his authorized stay, the employer does not have to pay the cost of return transportation.  

Moreover, an employer need not establish a valid basis or good cause for termination.  For the purposes of determining a bona fide termination and avoiding back pay liability, the employer may terminate the employment relationship for any reason. (Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ. 2004- LCA- 006 at 10).  However, the failure to prove every element of a bona fide termination leaves an employer liable for the entire period of authorized employment.  (Limanseto v. Ganze, OALJ 2011-LCA-00005 at 8).  Thus, the employer must (1) notify the employee of the employment termination, (2) notify USCIS the relationship is terminated so that USCIS may revoke approval of the petition, and (3) pay the employee the cost of return transportation to their last foreign residence.  Once all three requirements have been met, there has been a bona fide termination and the employer no longer has a duty to pay the required wage rate.

House Democrats and Republicans reached an agreement to fund the U.S. Government through 2016; however, the bill includes several provisions including one that effects the Visa Waiver Program.

The Visa Waiver Program applies to 38 partner countries including England, Australia, Chile, Japan, Spain and Taiwan among others. The program facilitates tourism and business and allows citizens of partner countries to travel to the United States for up to 90 days without obtaining a visa. In exchange the partner countries agree to share information about potential threats to national security.

The riders included in the spending bill would restrict access to the waiver program, making it difficult for citizens of those countries who have traveled to Syria, Iraq, Iran or Sudan — or citizens with dual citizenship between partner countries and those nations — to enter the U.S.

We recently received an extension approval for an O-1 Visa for one of our ballet dancer clients. We originally obtained the O-1 three years ago. We filed for the extension and received the approval within less than two weeks.

We provided updated evidence to show that our client was still performing at an elite level including recent dance activity and the 2016 itinerary. USCIS approved the extension for one year.

If you are considering an O-1 visa, contact Nelson & Nuñez.