To obtain Border Patrol records related to a prior incident at the border involving a foreign national apprehended by U.S. Customs and Border Protection (CBP), individuals typically follow these steps:

Summary of the Process

1. Determine Eligibility: Only certain individuals can request records, typically the foreign national involved or their legal representative. Third parties may need appropriate authorization.
2. Identify the Type of Record: Understand what specific records are needed (e.g., incident reports, apprehension records, or processing documents).
3. Submit a FOIA Request: Most records can be obtained through the Freedom of Information Act (FOIA). To do this:
   • Fill Out the FOIA Request Form: You can find the form on the CBP website or submit a written request. Include details like the date and location of the incident, and any available information about the foreign national.
   • Provide Necessary Documentation: Attach any relevant identification or authorization documents if you are representing someone else.
4. Send the Request: Submit the FOIA request to the appropriate CBP office. This can typically be done via mail or email, depending on the office’s instructions. It is generally best to file FOIA requests with multiple agencies in order to fully understand how a border apprehension was handled by CBP or Legacy INS.
5. Wait for Processing: FOIA requests can take several weeks to months for processing. You may receive a confirmation of your request, along with an estimated timeline.
6. Receive the Records: Once processed, you will receive the requested records. Be prepared for possible redactions due to privacy or security concerns.
7. Appeal if Necessary: If your request is denied or if you receive incomplete information, you have the right to appeal the decision following the instructions provided by CBP.

Additional Considerations
• Privacy Act Requests: If seeking records pertaining to yourself or someone you are authorized to represent, you may also consider submitting a Privacy Act request, which has similar procedures.
• Legal Assistance: Consulting with an immigration attorney may be helpful, especially in complicated cases or if the records are crucial for legal proceedings.

By following these steps, individuals can successfully obtain Border Patrol records regarding a specific incident involving a foreign national. The records produced through the FOIA process are often difficult to decipher and fully understand. It is important to have an experienced immigration attorney review these records and advise how the border apprehension may affect an individual's ability to obtain a green card or other immigration benefit. Nelson & Nunez, PC is well versed in filing FOIA requests and deciphering how the results affect potential future immigration cases.

Here’s an overview of the I-130 visa process for spouses and the K-1 fiancé visa process, along with a comparison of the two.

I-130 Visa Process (Spousal Visa)

1. Eligibility: The U.S. citizen or lawful permanent resident (LPR) must file a petition for their spouse. The marriage must be legally recognized and genuine.
2. Filing the Petition: The U.S. citizen or LPR submits Form I-130 (Petition for Alien Relative) to U.S. Citizenship and Immigration Services (USCIS), along with supporting documents (e.g., marriage certificate, proof of citizenship, evidence of a bona fide marriage).
3. USCIS Processing: After submission, USCIS processes the petition. Processing times vary based on the service center and the petitioner’s immigration status.
4. Consular Processing: Once the I-130 is approved, if the spouse is outside the U.S., the case is forwarded to the National Visa Center (NVC) for consular processing. The spouse will apply for an immigrant visa at a U.S. consulate.
5. Interview: The spouse attends an interview at the consulate, where they provide documentation and answer questions about the marriage.
6. Visa Approval: If approved, the spouse receives an immigrant visa and can enter the U.S. as a permanent resident.

K-1 Fiancé Visa Process

1. Eligibility: The U.S. citizen must file a petition for their fiancé, intending to marry within 90 days of the fiancé's arrival in the U.S.
2. Filing the Petition: The U.S. citizen submits Form I-129F (Petition for Alien Fiancé) to USCIS, along with supporting documents (e.g., proof of citizenship, evidence of a genuine relationship, and intent to marry).
3. USCIS Processing: USCIS processes the petition, and once approved, it is sent to the NVC for further processing.
4. Consular Processing: The fiancé applies for the K-1 visa at a U.S. consulate, where they submit documentation and undergo an interview.
5. Interview: Similar to the spousal visa process, the fiancé attends an interview, where they provide documentation and discuss the relationship.
6. Visa Approval: If granted, the fiancé receives a K-1 visa, allowing them to enter the U.S. and marry the U.S. citizen within 90 days.

Comparison of I-130 and K-1 Visa Processes

Comparison of I-130 and K-1 Visa Processes

Conclusion
Choosing between the I-130 spousal visa and the K-1 fiancé visa depends on your relationship status and timeline. The I-130 is for couples already married and seeking permanent residency, while the K-1 is for engaged couples who plan to marry shortly after arrival in the U.S. Each process has distinct requirements and timelines, so it's essential to consider which option aligns best with your situation. The K-1 process allows the foreign national to enter the US in a shorter period of time but it will generally be more expensive and requires an additional step of filing for the green card once the couple marries in the US. Deciding which path is best for you is dependent on many factors. Nelson & Nunez, PC can help evaluate your situation and advise on the best course of action for your specific situation.

The O-1 visa allows Canadian musicians with extraordinary ability to work in the U.S. Here's a streamlined overview of the process:

1. Eligibility Requirements: Canadian musicians must demonstrate extraordinary ability through significant achievements, such as awards, critical acclaim, or major contributions to their genre.
   
   
2. Initial Consultation: Nelson & Nunez offers an initial consultation to assess eligibility and guide musicians through the requirements, ensuring they meet the necessary criteria.
   
   
3. Petition Preparation: The firm assists in preparing Form I-129 (Petition for a Nonimmigrant Worker). They help gather essential documentation, such as:
   
   • Evidence of awards and recognition
   • Reviews, articles, and press coverage
   • Performance history and collaborations
   • Letters of recommendation from industry experts
   
   
4. Advisory Opinion: Nelson & Nunez can facilitate obtaining an advisory opinion from a relevant peer group or labor organization, which can strengthen the petition.
   
   
5. Filing the Petition: The law firm ensures that the petition is thoroughly prepared and filed with U.S. Citizenship and Immigration Services (USCIS), helping to navigate any complexities.
   
   
6. Visa Application Process: Once the petition is approved, Nelson & Nunez guides musicians through the visa application process at a U.S. consulate or embassy, including preparing for the interview.
   
   
7. Entry into the U.S.: With the O-1 visa approved, the firm provides advice on entry into the U.S. and what to expect during the process.
   
   
8. Duration and Extensions: The O-1 visa is granted for up to three years, with options for extensions. Nelson & Nunez assists in managing any extension requests based on ongoing projects or performances.
   
   

How Nelson & Nunez Helps
Nelson & Nunez specializes in immigration law for artists and entertainers. They offer personalized support to Canadian musicians, ensuring that all aspects of the O-1 visa process are handled professionally and efficiently. Their expertise can significantly improve the chances of a successful application, allowing musicians to focus on their craft while they manage the legal complexities.

Overall, partnering with Nelson & Nunez can make the O-1 visa process smoother and more successful for Canadian musicians aiming to perform and collaborate in the U.S. We have represented countless Canadian musicians and artists over the last decade. Contact our office to schedule a consultation.

On Aug. 19, USCIS will begin accepting requests for, using a new electronic form, Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens. Form I-131F will not be available on uscis.gov until Aug. 19. USCIS is not accepting any other form for Keeping Families Together. Do not file a request for parole in place under this process before Aug. 19, 2024.

We are publishing a Filing Guide for Form I-131F on the Keeping Families Together webpage. This guide will help individuals as they prepare to file a request for parole in place through the online process. We have also updated the Key Questions and Answers about the process on the Keeping Families Together webpage. More information about Keeping Families Together will be made available in a Federal Register notice in the coming days.

Form I-131F will only be available to file online. Each requestor, including minors, must file a separate Form I-131F, and each requestor must have their own USCIS online account, including minors. Information on creating a USCIS online account is available on the How to Create a USCIS Online Account webpage. There is no paper form for this process.

Protect Yourself from Immigration Scams
We do not want you to become the victim of an immigration scam. If you need legal advice on immigration matters, make sure the person helping you is authorized to give legal advice. Only an attorney admitted to practice law in the United States or accredited representative working for a Department of Justice-recognized organization can give you legal advice on immigration matters. Be aware of individuals who guarantee outcomes; applications are reviewed on a case-by-case basis by USCIS. Visit the Avoid Scams webpage for information and resources.

Some common scams to be aware of include:
·  Government impersonators:  Look out for individuals who pretend to be USCIS officials. USCIS will only contact you through official government channels and will not contact you through your personal social media accounts (such as Facebook, X, LinkedIn, etc.).
·  Scam Websites: Some websites claim to be affiliated with USCIS and offer step-by-step guidance on completing a USCIS application or petition. Make sure your information is from uscis.gov or dhs.gov or is affiliated with uscis.gov. Make sure the website address ends with .gov.
·  Payments by Phone or Email: We will never ask you to transfer money to an individual. We do not accept Western Union, MoneyGram, PayPal, or gift cards as payment for immigration fees. In addition, we will never ask you to pay fees to a person on the phone or by email.
·  Notarios Públicos and unauthorized practitioners of immigration law: In the United States, a notario público is not authorized to provide you with any legal services related to immigration benefits. Only an attorney admitted to practice law in the United States or an accredited representative working for a Department of Justice-recognized organization can give you legal advice on immigration matters. For more information about finding legal services, visit our website.

Navigating the U.S. immigration system can be a complex and daunting task, especially when it comes to adjusting your status to lawful permanent residency (a Green Card). One critical aspect of this process involves understanding job porting and the requirements for filing an I-485 Supplement J. This article aims to clarify these concepts and guide you through when and why you need to file this supplement.

What is Job Porting?
Job porting refers to the ability of an employment-based Green Card applicant to change employers without jeopardizing their Green Card application, provided certain conditions are met. The flexibility granted by job porting is significant because it allows applicants to switch jobs or employers if the original job is no longer suitable or available, or if they find a better opportunity.

Key Points About Job Porting:

• • Eligibility for Porting: To port your job, you must be in the adjustment of status process (Form I-485) and your application must be pending for at least 180 days. Additionally, the new job must be in the same or a similar occupational classification as the job for which the Green Card application was originally filed.
  
• • Same or Similar Occupational Classification: The new job does not need to be with the same employer or be exactly the same as the original job but must be in a similar occupation. The idea is that the new role should align with the skill set and experience described in the original job offer.
  
• 
  

What is Form I-485 Supplement J?
Form I-485 Supplement J, officially known as "Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)," is a document that confirms the legitimacy of your job offer or your request to port your job.

Key Functions of Supplement J:

• • Confirmation of Employment Offer: Supplement J is used to confirm that you have a valid job offer if your Form I-485 is still pending. This is critical to show that you have a legitimate and ongoing job offer that aligns with the original employment-based Green Card petition.
  
• • Request for Job Portability: If you are changing jobs, Supplement J can be used to notify U.S. Citizenship and Immigration Services (USCIS) of the change and confirm that the new job is in the same or similar occupational classification.
  
• 
  

When Must You File Form I-485 Supplement J?

1. When Porting Jobs: If you change jobs while your Form I-485 is pending, you must file Supplement J to inform USCIS of the job change. This needs to be done within 180 days of the job change or when your Form I-485 is pending for 180 days or more.
2. When USCIS Requests It: USCIS may request Supplement J as part of the processing of your Form I-485. In such cases, you must respond to the request and provide the necessary documentation to demonstrate that the new job qualifies.
3. Upon Initial Adjustment Application: While it is not always mandatory to file Supplement J with your initial I-485 application, it may be necessary in certain cases to confirm that the job offer is still valid or to provide additional information about your job status.
   

Completing Form I-485 Supplement J
When filling out Supplement J, you need to provide:

• • Information About the New Job: This includes the job title, duties, and how they are similar to your previous job.
  
• • Details About the Employer: The name, address, and other relevant details of the new employer.
  
• • Signature from the New Employer: The form requires certification from the new employer to confirm the bona fides of the job offer.
  

Conclusion
Understanding job porting and the requirements for filing Form I-485 Supplement J is crucial for maintaining the continuity of your Green Card application process. By ensuring that you file Supplement J appropriately when changing jobs or when requested by USCIS, you help safeguard your status and facilitate a smoother transition to permanent residency. Always consider consulting with an immigration attorney to ensure compliance with all requirements and to receive personalized advice based on your specific circumstances.

In the complex world of U.S. immigration law, the Child Status Protection Act (CSPA) is a key provision that can significantly influence EB-5 visa applications. For those navigating the EB-5 Immigrant Investor Program, understanding how the CSPA applies is crucial. This article outlines the important aspects of the CSPA in relation to EB-5 cases and provides guidance for investors and their families.

What is the CSPA?
Enacted in 2002, the Child Status Protection Act (CSPA) addresses the problem of children "aging out" of eligibility for immigration benefits as they turn 21. The CSPA allows certain children to maintain their eligibility for visas by effectively “freezing” their age, under specific conditions.

Overview of the EB-5 Immigrant Investor Program
The EB-5 Immigrant Investor Program provides a pathway to U.S. permanent residency for foreign nationals who invest a minimum amount in a new commercial enterprise that creates at least ten full-time jobs for U.S. workers. As part of this process, an EB-5 investor’s spouse and children under 21 can also obtain green cards as derivative beneficiaries.

Applying the CSPA to EB-5 Cases
The CSPA is particularly relevant for children of EB-5 investors who are included as derivative beneficiaries. Here’s how the CSPA affects these cases:

1. CSPA Age Calculation: The CSPA allows children to remain eligible for immigration benefits even if they turn 21 before their green card application is processed. It uses a specific formula to determine the child’s “CSPA age,” which could be younger than their actual age.
2. How the Formula Works: To calculate CSPA age, subtract the number of days the visa petition was pending from the child’s age at the time the visa becomes available or the petition is approved. This calculation helps ensure that children who are close to aging out still benefit from the EB-5 program.
3. Eligibility Requirements: For CSPA protection, the child must have been under 21 at the time the EB-5 petition was filed or when the visa became available. Additionally, the child must apply for permanent residence within one year of the visa becoming available or the petition being approved.
4. Practical Application: Investors should accurately track the timing of their petitions and visa availability to ensure proper application of the CSPA. This includes keeping detailed records and updating USCIS or the U.S. Department of State with any necessary documentation.
5. Impact of Processing Delays: Due to the lengthy processing times associated with EB-5 petitions, children may age out during the process. The CSPA aims to protect these children from losing their eligibility due to delays.

Key Considerations
• Document Everything: Investors should maintain thorough records of all petition filings, approvals, and visa availability to accurately calculate and document the child’s CSPA age.
• Stay Updated: Regularly check the status of your petition and visa bulletins, as changes in processing times can affect CSPA calculations.
• Consult an Attorney: Given the complexities of immigration law and the CSPA, it’s advisable to seek guidance from an immigration attorney who specializes in EB-5 cases to navigate the process effectively.

• Conclusion
  

The Child Status Protection Act offers essential protections for children of EB-5 investors, helping them retain eligibility for U.S. permanent residency even as they approach or surpass the age of 21. By understanding and correctly applying the CSPA, investors can help ensure that their families fully benefit from the EB-5 Immigrant Investor Program. With careful attention to detail and timely actions, families can secure their future in the United States.

For more information and assistance with EB-5 cases and the CSPA, contact Nelson & Nunez, P.C. for expert guidance tailored to your specific situation.

Senator James Lankford,along with Senator Sinema (Arizona) and Senator Chris Murphy (South Carolina), negotiated a bipartisan border security bill at the end of last year and early 2024, that would have strengthened our border with Mexico, added border patrol agents and immigration judges, and seemingly was everything the Republican party had been requesting. President Biden, despite the bill not offering a pathway to citizenship for Dreamers, was prepared to sign the bill into law. Mitch McConnell supported the bill. Everything seemed to be moving towards a strong immigration bill that would fix the problem with the Southern border. However, former President Trump actively whipped against the bill and convinced members of the Republican party to vote against it. In this this interview, Senator James Lankford explains what happened to this bill, what was in it, and how the situation unfolded.

https://www.youtube.com/watch?v=VK0Yjh1e15w

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