On September 05, 2017, the Trump administration rescinded the DACA Program, a renewable program set up by the Obama administration that allowed undocumented individuals who entered the U.S. as a minor to be protected from immigration deportation. DACA has been viewed by some as a partial amnesty as it allowed certain group of undocumented individuals to live and work in the United States for a period of time. It’s a renewable program, although it does not and never did grant “legal status” to it’s recipients.With the September 5th action, DACA recipients across the country who were prepared to renew their DACA applications expressed their fear of losing their DACA protection. Shortly after the rescission of DACA, the University of California filed suit against the DACA rescission and while the case proceeding in the courts, on January 9th, 2018, a preliminary injunction was granted at the request of the University of California. The preliminary injunction was granted by US District Judge William Alsup who ordered the Department of Homeland Security to continue accepting DACA renewal applications. Individuals who were previously protected could now continue with their renewal applications, even if they failed to renew by the October 5th, 2017 deadline or those that will be expiring in the future. This order and its protection has the following exceptions: 1) New applications from applicants who have never before received deferred actions; 2) Advance parole petitions will not be adjudicated; 3) The department of Homeland security may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.
Under the current Administration, employment based visa and green card applications are given tougher adjudication by the U.S. Citizenship and Immigration Services (USCIS). H1B visa, also known as H1B visa for Specialty Workers are no exception. If you are an employer looking to sponsor an H1B employee, what are your best bet on getting your worker approved of his/her H1B visa? How about H1B renewal for those who are already working as an H1B workers? With 4 months left before H1B applications can be filed (April 2nd, 2018 as April 1st is on Sunday), it is important to start planning your H1B visa application including understanding the H1B requirements for both employer and the H1B worker, as well as finding an experienced Immigration law firm which has an excellent track records of handling H1B visas and other related employment green cards.
Based in the heart of the commercial district of Chicago downtown, our Chicago based immigration lawyers have successfully handled many H1B applications since 2007. Although our immigration lawyers are based in Chicago, but we routinely handle H1B renewal and new H1B applications throughout the year within and beyond Chicago. Please contact us today to schedule an appointment.
Our office will be closed on 11/23/2017 as we will be spending time with our families and friends. We wish you a Happy Thanksgiving!
Two individuals, who both entered without inspection, marry. The couple’s home is broken into two and thieves steal nearly 10,000 dollars in property. The homeowners cooperate with the police and, through their cooperation find the criminals. Are they eligible for a U-visa?
The U Visa is a special non-immigrant visa available to the victims of crimes that occurred in the United States or territories. Aside from the location of the crime, the applicant must demonstrate that they “a) suffered substantial physical or mental anguish as a result of having been a victim of ‘qualifying criminal activity,’ b) possess credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based and c) has been helpful is being helpful or is likely to be helpful to a certifying agency in the investigation or persecution of the qualifying criminal activity.”1
A qualifying criminal activity is defined as one, a combination of or an activity similar to, one of the following crimes: blackmail, incest, perjury, domestic violence, involuntary servitude, rape, extortion, kidnapping, sexual assault, false imprisonment, manslaughter, sexual exploitation, felonious assault, murder, abusive sexual contact, female genital mutilation, obstruction of justice, slave trade, held as a hostage, peonage, witness tampering or the attempt, conspiracy or solicitation to commit any of these crimes.
Substantial Physical or Mental Anguish is defined as abuse that results in injury or harm to the victim’s physical person, or harm to the psychological soundness of the victim.2 There are many factors that are considered when evaluating the aforementioned details. These factors include but are not limited to “the nature of the injury; the severity of the perpetrators’ conduct, the severity of the harm suffered; the duration of the infliction of harm; any permanent or serious harm to appearance, health and physical or mental soundness, and any aggravation of a victim’s pre-existing conditions. No single factor is required and a series of acts may suffice, even where no single act meets the standard.”3
U Visas are available to aliens who are the victims of crimes that happened in the United States and have experienced substantial physical or mental harm. Furthermore, the applicant has to be willing to cooperate with police in the investigation of the crime. Many crimes qualify and the aforementioned list is in no way exhaustive. The qualifying crimes are typically violent, coercive or psychologically disruptive in nature. The most ambiguous part of U-Visas is defining substantial physical or mental abuse, as while many factors are considered, these factors can be subjective.
U Visa Hypothetical Answer
Burglary, in of itself, does not specifically constitute any of the crimes on the aforementioned list. While the list is not exhaustive, the nature of burglary, as a crime, is not substantially similar to that list of crimes. Many of those crimes are violent or coercive in nature. To qualify for a U-Visa, then, the applicants must have also been the victim of another crime that would qualify. While the 10,000 dollars lost in assets is substantial, its worth is technically irrelevant because burglary does not qualify. Thus, scenario must be given more context, to narrow down the possibilities of other crimes that might have been committed during the burglary.
If the couple was not present during the crime, then the likelihood of other qualifying crimes to have occurred are unlikely. Some after- the-fact crimes could have been committed. For examples, if the couple was blackmailed or threatened, after the crime by the thieves, to not report the burglary, they might claim blackmail or obstruction of justice.
However, if the couple was home at the time of the burglary, then it seems rather likely that other crimes would have occurred simultaneously. If, for example, during the crime, the couple was assaulted (it would have to be a felony) or, held hostage and cooperated with the police, then they would qualify. If the couple was held against their will, they might qualify as being victims of false imprisonment.
The scenario gives that the couple had cooperated with the police and that their cooperation has led to the apprehension of the criminals. The next step in this process would be to prove that the crimes, associated with the burglary, would cause physical or mental anguish. In the case of the couple being home during the burglary, the severity of the associated crimes would be without question. The 10,000 dollars, while not a qualifying factor, can demonstrate the nature and extent of the burglary. For the couple, the loss of significant assets while also being threatened or physically abused would certainly result in significant mental anguish.
U Visa Conclusion
Burglary would not constitute a crime that one could claim in a U-Visa application. However, other crimes that would seemingly occur during a home invasion or as a result of a burglary might. Other circumstances may change the findings given above. For example, if one was inadmissible on other ground, they might have to file for an inadmissibility waiver.
Since 2001, the Development, Relief, and Education for Alien Minors, or DREAM Act, has been stagnating in Congress. Essentially, this bill would grant conditional permanent residency to eligible immigrants of good moral character, who graduate from U.S. high schools and have lived in the U.S. for 5 continuous years prior to the bill’s enactment, contingent on the requirement that they attend college or join the military.
Rather than examine the DREAM Act from an ideological perspective, this article will explore the economics of the DREAM Act; both the benefits in economic growth, as well as the overall cost of passing this controversial piece of legislation. Using data collected by the Congressional Budget Office, The Center for American Progress, and the North American Integration and Development Center (NAID) at UCLA, this article will highlight the positives and the negative aspects regarding the economic impact of this bill.
Enacting the DREAM Act would have three major positive effects on the economy. First it would create more federal revenue, as more people paid into federal taxes and social programs. Second, it would create incentive for immigrants to become more educated, and educated people earn more money that can be spent on goods and services that benefit the economy. The third and final effect is that of higher educated workers paying more in taxes, that in turn goes into government programs.
If enacted immediately, the Dream Act could grant conditional permanent residency to nearly 2.1 million undocumented youths. This large number of people entering the workforce would affect federal revenues in many ways, especially considering eligibility for some refundable tax credits, Social Security, and Medicare benefits would be inherent in the bill’s enactment. According to a study done by NAID, allowing these 2.1 million immigrants legal status would generate $3.6 trillion over a 40-year period. Social Security and Medicare benefits are a major point of contention in the DREAM Act debate. Since these benefits would become available to nearly 2.1 million people, it is necessary to examine how that number will impact the systems in place. Because the DREAM Act would affect a large population of relatively young people, their projected impact for the 2011-2020 period is extremely minor. Young people are generally healthier, and therefore require less medical care. The CBO used information form the Current Population Survey to project that only 0.2% of the population affected by the DREAM Act would qualify for Social Security in the 2011-2020 timeframe. Because of the overall low number of DREAM Act eligible people who would require Social Security or Medicare from 2011-202, the CBO estimates that the bill would boost Medicare outlays by $29 million, and Social Security outlays by $77 million. Because of these increases, as well as the sustainability of the program as supported by application fees as determined by the Department of Homeland Security, the overall impact of the DREAM Act is estimated to reduce federal deficits by around $1.4 billion over the 2011-2020 period. Beyond the federal economic effects, the increases in legally authorized workers in the economy provided by enactment of the DREAM Act would also impact the national economy. The NAID report estimates that this could lead to income generation of nearly $3.6 trillion in current dollars.
Considering that the basis of the DREAM Act requires a certain level of educational attainment in order to eligible for conditional permanent resident status, the bill serves as an incentive for the attainment of the higher education. NAID estimates that if the DREAM Act is passed, around 100,000 immigrants would join the military, around 850,000 immigrants would attain an Associate’s degree, and nearly 1.2 million immigrants would attain at least a Bachelor’s degree. Of the nearly 1.2 million immigrants who would attain a Bachelor’s, around 34,000 would go onto a Master’s degree, and almost 12,000 would attain a Doctorate or first professional degree. This translates into federal revenue as more highly skilled workers enter into the workforce.
When higher skilled workers enter the economy, they in-turn have more income to spend, and more income that will be taxed. According to the Congressional Budget Office report on the cost estimate of the DREAM Act, the bill would lead to increased reporting of employment income, which would add to the receipts from both social insurance taxes and individual income taxes 3. Increased reporting would also lead to larger tax reductions by businesses for labor compensation, which would reduce profits. However, due to the corporate and non-corporate nature of businesses, these deductions would reduce both corporate and individual tax receipts, offsetting some of the increases that will occur 4. According to the Joint Committee on Taxation (JCT), the overall impact on revenues would be a $2.3 billion increase in the 2011-2020 period.
Although these figures paint a mostly positive picture of the economics of the DREAM Act, there are a few important caveats that should be mentioned. Although nearly 2.1 million immigrants will be eligible if enacted, estimates on the anticipated number of eligible immigrants who will successfully attain conditional permanent resident status say the number will be much lower. A 2010 report by the Migration Policy Institute claims that if current trends continue to mirror past trends, around 38%, or 825,000 eligible immigrants would successfully gain lawful permanent resident status5. Another major issue concerns what will happen after 2020, and in the future as DREAM Act participants become older and therefore more reliant on Medicare and Social Security. The CBO estimates that the bill would increase projected deficits by nearly $5 billion in at least one of the four consecutive 10-year periods starting in 20216, and there is a lot less specific data available as to what the long term consequences might be. In many ways, the short-term gains of the legislation make the DREAM Act extremely appealing to a slowly recovering global economy, but many feel that the economic uncertainties of the strain it could eventually place on social security nets is too great a risk. This is a common issue when discussing social policy changes, and can be counteracted with consideration.
Regardless of the political opinions that encompass the current Congressional debate, or lack thereof, over the DREAM Act, there are obvious economic factors that must be taken into consideration. A bill that would introduce such a large number of lawful permanent residents to both our economy and our nation, should not be taken lightly. Moving forward, Congress must consider the implications of research such as that presented by the Congressional Budget Office when reviewing this historic and controversial piece of legislation.
Sources Batalova, Jeanna, and Margie McHugh. “DREAM vs. Reality: An Analysis of Potential DREAM Act Beneficiaries.” Migration Policy Institute, July 2010. Carlos Guzman, Juan, and Raul C. Jara. “The Economic Benefits of Passing the DREAM Act.” The Economic Benefits of Passing the DREAM Act. Center for American Progress. Partnership for a New American Economy, Oct. 2012. Hinojosa Ojeda, Raul, Paule Cruz Takash, Gerardo Castillo, Gilmar Flores, Adriana Monroy, and Delroy Sergeant. “No DREAMers Left Behind: The Economic Benefits of Passing the DREAM Act.” (n.d.): n. pag. North American Integration and Development Center. University of California, Los Angeles, 1 Oct. 2010. Morancy, Jonathan, Melissa Merrell, David Rafferty, Mark Grabowicz, Kirstin Nelson, Kathleen Fitzgerald, and James Jin. “S. 3992, Development, Relief, and Education for Alien Minors Act of 2010.” Congressional Budget Office. N.p., 7 Dec. 2010. Sources http://www.naid.ucla.edu/uploads/4/2/1/9/4219226/b67_hinojosa_2010_no_dreamers_left_behind_6.pdf http://www.cbo.gov/sites/default/files/s3992.pdf http://www.renewoureconomy.org/wp-content/uploads/2013/07/economic-benefits-dream.pdf
EB-5 Immigrant Investor Program Visa
Since the passage of the Immigration Act of 1990, the creation of the EB-5 Immigrant Investor program has been an accessible pathway to lawful permanent residence in the United States for qualifying investors. Participation in this program allows the USCIS to grant investors conditional two year green cards, and the opportunity to apply for permanent lawful residency at the end of two years. Approximately 10,000 visas are allocated annually to the specific EB-5 category, for the particular purpose of stimulating economic growth and creating domestic jobs. As such, qualified EB-5 applicants must be able to invest $1,000,000 in a new capital enterprise, or $500,000 in a Targeted Employment Area (TEA). Investors must be able to present a strong business plan that reasonably accounts for the creation of 10 full-time jobs for U.S. workers. The benefits of such a program can be profitable for both the financial state of the investor, as well as the residential status of the investor and their derivative family members (spouses and unmarried children under 21 years of age). Although these benefits exist, the EB-5 is a high risk investment opportunity that should be approached with caution.
USCIS requires that investors must invest in new commercial enterprises, specifically ones established after November 29, 1990. These can comprise any for-profit activity created for the purpose of conducting lawful business, and include sole proprietorships, corporations, holding companies, joint ventures, partnerships, and business trusts (both publicly and privately owned).
In certain cases investors may invest in commercial enterprises established before November 29, 1990, but only under the special circumstances of either (1) a serious restructuring or reorganizing that results in a new commercial enterprise, or (2) when an expansion through investment has increased the operation’s net worth or number of employees by 40 percent. Another option is to invest in a “troubled business,” or a business that has been in existence for at least two years, but in the 12-24 months prior to the investment, it has sustained a loss of at least 20 percent of its net worth. In these latter cases, investors must often prove that they preserved 10 jobs during their two year conditional period.
While 10,000 EB-5 visa numbers are made available annually, 3,000 are allocated for investment in TEAs, and 3,000 are allocated for investors affiliated with Regional Investment Centers certified by the USCIS. A TEA must either be an area with 150 percent of the national average rate of unemployment, or be considered a rural area outside of metropolitan limits with a population of less than 20,000. Regional Center Programs are geographic pools of foreign investment, used to direct funds into job-creating businesses that facilitate economic growth. In the case of investment through a regional center, each investor must be able to prove he or she has created 10 full time jobs, either directly or indirectly, within the two year conditional time frame. Regional Center projects generally place the funds at risk into the job creating enterprise in the form of either a loan or equity.
How to Apply & Prove Your Investment
Applying for an EB-5 visa can be incredibly tricky, particularly when it comes to documenting the source of investment capital. It is crucial that the applicant is meticulous in his or her documentation, and provide detailed descriptions in every aspect of the application. The first step is to file the I-526 petition, which is used for both individual applicants, and those interested in Regional Center projects. There are several major requirements that must be proven through the I-526 petition, as follows:
New Commercial Enterprise:
- A new commercial enterprise is defined as a commercial enterprise established after November 29, 1990. The investor must provide evidence that the applicant has invested in a “new” business enterprise operating under the jurisdiction of the United States, or has invested in an enterprise established before November 29, 1990, with two specific criteria. The previously established enterprise must be restructured in such a way that the result is a new commercial enterprise, or able to prove the investment has facilitated a 40 percent increase in either net worth or employment.
Target Employment Area:
- Proof that the enterprise exists in a TEA, if the investor has invested $500,000.
Funds Are At Risk:
- Escrow agreements, statements, documentation of fund transfers, loan agreements, or any other documentation that proves the applicant is has invested, or is in the process of investing the amount required for the location of the business.
Lawful Source of Funds:
- Extremely detailed evidence that the capital was obtained through lawful means.
- Valid evidence that the enterprise will create either 10 direct or indirect full time jobs in which employees work a minimum of 35 hours a week, for those legally authorized to be employed in the U.S.
- Clear documentation that the investor is active and involved in the management and decision making process for the business (less applicable for Regional Center investment).
In order for an I-526 to be approved and for the applicant to be cleared for lawful conditional residence in the United States, it is imperative that the I-526 clearly proves each of these six requirements in great detail. Once the USCIS has approved the I-526, the investor will be granted conditional permanent residence. This also applies to the investor’s derivative family members.
Becoming a Legal Permanent Resident
The EB-5 is first and foremost a conditional two year visa, at the end of the two-year period, the applicant must file to remove the conditions and becoming a fully lawful permanent resident of the United States. 90 days before the two year anniversary of the approval of conditional permanent resident status, the investor must file the I-829 petition. The I-829 petition must satisfy four main requirements, as follows:
- Evidence of the investor’s establishment and ongoing functionality of a commercial enterprise.
- Financial statements or documentation to support that the applicant actively participated in the investment of the requisite capital.
- Proof that the investor maintained and sustained the investment throughout the entire conditional period. This could mean bank statements, tax returns, invoices, receipts, contracts, or other kinds of documentation.
- Concrete evidence that the investor created 10 full time U.S. jobs, or is anticipating the creation of the required jobs within a reasonable time frame.
Upon approval of the I-829 petition, the investor, as well as his or her derivative family members, will become fully lawful permanent residents.
In recent years, the slow economy has prompted the USCIS to become more accommodating in its consideration of EB-5 applications.This accommodation, in addition to the positive economic growth seen in the last few years,has rendered the program more attractive. Since the creation of the program in 1990, no numerical caps for EB-5 visa numbers had ever been reached until very recently. On August 23, 2014, the Department of State Immigrant Visa Control and Reporting Division announced that the EB-5 preference category for Chinese applicants had become unavailable until the start of the 2014-2015 fiscal year, which began on October 1, 2014. The increased success of this program leads investors to hope that Congress will soon raise the cap on EB-5 applications, allowing more investors to contribute to economic growth in the U.S. through this special visa program. In 2012 alone, the EB-5 investment program contributed over $3 billion dollars to U.S. GDP, and supported over 40,000 jobs.
If you are considering immigrating to the United States through an EB5 contact one of our experienced immigration lawyers.
I-601A, Solicitud de Perdón Provisional por Presencia Ilegal
Los inmigrantes que desean solicitar una visa de inmigrante o un ajuste de estatus para obtener la residencia permanente legal (también conocido como “tarjeta verde” o “green card”) deben ser admisibles. Una razón común para ser declarado inadmisible es la presencia ilegal en los Estados Unidos, también conocida como presencia indocumentada. Esto ocurre cuando un inmigrante entra a los EEUU sin inspección (es decir, cruzó ilegalmente la frontera sin visa) o sobrepasa su visa (es decir, entró legalmente con una visa, pero se quedó en los EEUU después que se le venció). De acuerdo con la Ley de Inmigración y Nacionalidad, un inmigrante se considera generalmente inadmisible si él o ella:
(I) estaba ilegalmente en los Estados Unidos por un período de más de 180 días pero menos de 1 año, voluntariamente salió de Estados Unidos antes del comienzo de un procedimiento bajo la sección 235 (b)(1) o del artículo 240, y de nuevo busca la admisión en los 3 años siguientes a la fecha de salida de tal inmigrante o expulsión, o
(II) ha estado ilegalmente en los Estados Unidos por un año o más, y que una vez más busca la admisión dentro de los 10 años de la fecha de salida de tal inmigrante o expulsión de los Estados Unidos …
Esto significa que si un inmigrante estaba ilegalmente presente dentro de los EEUU y se fue voluntariamente o involuntariamente al extranjero, él o ella no puede reingresar a los EEUU por un periodo de 3 o 10 años. Esto se conoce como un impedimento de entrada, también conocido como “castigo” o “barra.” En ciertas circunstancias, esta base de inadmisibilidad puede ser perdonada y el inmigrante ilegal no estará sujeta a este barra de 3/10 años si él o ella aplica para una Solicitud de Perdón Provisional por Presencia Ilegal (I-601A). La barra de 3/10 años es común para las personas que cruzan la frontera de manera ilegal (entran sin inspección).
Para calificar para un Perdón I-601A, el inmigrante debe cumplir con los siguientes requisitos:
- Estar físicamente presente en los Estados Unidos;
- Tener 17 años de edad o más en el momento de la radicación del caso;
- Ser el Beneficiario de una petición familiar aprobada en la cual una Visa de Inmigrante está disponible de inmediato;
- Tener una relación calificada con un ciudadano Americano o residente permanente legal. Después de la Orden Ejecutiva Presidencial de 20 de noviembre de 2014, un pariente calificativo incluye cónyuge, hijos e hijas de ciudadanos Americanos; los cónyuges, hijos e hijas de residentes legales permanentes, independientemente de su edad;
- Tener un caso de Visa de Inmigrante pendiente con el Departamento de Estado (DOS), que se relaciona con la aprobación de la Petición I-130 o I-360 y para el cual el inmigrante ya ha pagado la cuota de procesamiento de Visa de Inmigrante de DOS; y
- Creer que él o ella es, o será, inadmisible sólo por la presencia ilegal en los Estados Unidos durante una sola estancia.
Mientras que un inmigrante ilegal puede calificar para el Perdón I-601A, él o ella también debe demostrar dificultades extremas para el ciudadano Americano (cónyuge o padre/madre) o el residente permanente legal (cónyuge o padre/madre). Esto significa que el inmigrante tiene que probar que si el ciudadano Americano/residente permanente legal debe mudarse al extranjero o si el inmigrante se traslada sin el ciudadano Americano/residente permanente legal, el ciudadano Americano/residente permanente legal sufrirá dificultades extremas. Los factores que se consideran en la determinación de dificultades extremas incluyen la salud/consideraciones médicas, razones financieras y económicas, educación, consideraciones personales, lazos familiares, y condición del país extranjero. En esencia, cuando más evidencia es presentada para demostrar las dificultades del ciudadano Americano/residente permanente legal, más fuerte va ser el caso. La Orden Ejecutiva del 20 de noviembre de 2014 dirige a USCIS (Servicio de Ciudadanía e Inmigración de EEUU) para proveer directrices más claras para definir dificultades extremas con la intención de hacer la categoría I-601A más ampliamente disponible.
Si un Perdón I-601A está aprobado provisionalmente en los EEUU, una entrevista para la Visa de Inmigrante se programará en el Consulado Americano del país de origen del inmigrante. El inmigrante tendrá que viajar a su país nativo para asistir la entrevista consular. Mientras viaje al extranjero, la barra de 3/10 años se activará. Sin embargo, si la visa es aprobada, el inmigrante se le permitirá regresar a los EEUU como residente permanente debido al Perdón I-601A.
Si el Perdón 601A es negado por el USCIS en los EEUU, el inmigrante no será sujeto a procedimientos de expulsión o deportación, siempre que no existan problemas complicados de criminalidad o seguridad nacional. En general, las consecuencias son financieras.
Un ejemplo del proceso de I-601A es cuando un inmigrante cruza ilegalmente la frontera entre México y Estados Unidos por sólo 1 vez. Después de algunos años de vivir en los EEUU, el inmigrante se casa con un ciudadano Americano, tiene hijos que son ciudadanos Americanos, un trabajo, una casa y paga impuestos. Ahora el inmigrante indocumentado quiere calificar para residencia permanente. El cónyuge Americano presenta una Petición I-130, el cual es aprobado. Sin embargo, el inmigrante no es elegible para ajustar su estatus debido a su presencia ilegal en los EEUU (es decir, cruzó la frontera sin inspección). Para superar esta inadmisibilidad, el inmigrante aplica para un Perdón I-601A. Después que el Perdón I-601A es aprobado provisionalmente en los EEUU, el inmigrante viaja a México para asistir a la entrevista en el consulado Americano y se le otorga la Visa de Inmigrante. Ahora, el inmigrante puede volver a entrar en los EEUU como residente permanente con su tarjeta de residencia y vivir en los EEUU permanentemente y legalmente. Esto es lo que comúnmente se conoce como “arreglar los papeles.”
Tenga en cuenta que la presencia ilegal es sólo una de las muchas bases de inadmisibilidad. Si usted es inadmisible por otras razones, o si está en el extranjero y se considera inelegible para una visa porque usted es inadmisible para los EEUU, puede haber otras exenciones de inadmisibilidad disponible. Si usted piensa que usted es inadmisible, necesitará un abogado con experiencia para revisar y estratégicamente preparar su caso. Póngase en contacto con Cipolla Law Group para hacer una consulta.