Category: Current Immigration News

Obama’s Executive Action for Undocumented Adults

Obama's executive action for undocumented parents

The DAPA executive order expands deferred action to parents of US Citizens and Lawful permanent residents that have been in the United States since January 1, 2010. Similar to the DACA process, DAPA will require the Applicant to show evidence of their entry in the US, their continuous presence in the US, the parent child relationship with the US Citizen or Lawful Permanent Resident (Green Card holder) child.

Eliminating Age Requirement of DACA

Previously deferred action was available to children that were brought to the United States prior to their 16th birthday along with specific age requirements and are under 31 years of age, which uses the acronym DACA.  The new executive order for DACA eliminates the age requirement.  The broader eligibility requirements should make more undocumented immigrants that entered the United States either illegally or overstayed a visa eligible for deferred action.

Pro’s and Con’s of DACA and DAPA

The primary benefit of deferred action is lowering the risk of being deported and gaining employment authorization.  Deferred action is extended to a term of 3 years as opposed to the previously granted two years.  The downside of deferred action is it does not provide immigration status such as permanent residence or naturalization.  To see if you are eligible for DACA or DAPA, please visit our Deferred Action page here. Feel free to contact one of our experienced immigration lawyers to schedule a consultation to analyze your case for DACA or DAPA and any other relevant immigration options available to you.

Will War Prisoner Be Subject To US Immigration Laws? An Immigration Lawyer Perspective

A US war prisoner, who is a Russian veteran of the Soviet war in Afghanistan who defected to the Taliban and stayed in Afghanistan is being transferred to the United States for a criminal trial as opposed to military trial. Aside from the national security implications, and now criminal implications, this very interesting from an immigration lawyer perspective. What status will the prisoner be in when entering (ie. will he be given a visa such as B1/B2 visa)? Will his entry count as an admission so that he may not accrue unlawful presence? If he married a US Citizen after his entry could he get a green card? Also, what will be his country of nationality? If he were to prevail in the criminal trial, what will be his immigration status? Will he be placed in removal proceedings? When does the 1 year clock in asylum kick in? Can he concurrently apply for asylum or withholding of removal as soon as he got to the US? Since he has been in captivity since 2009 he likely provided information to the US government. The transferring of a war criminal to the US for civilian criminal procedures certainly raises a lot of questions. While the immigration issues are definitely secondary to this situation, they are certainly interesting immigration questions and will keep immigration lawyers debating for a while. It will be interesting to see how things play out.

Immigration Reform: Will Registered Provisional Status Lead to Permanent Residence?

Undocumented immigrants Senate Bill 744, otherwise known as the Gang of Eight’s Comprehensive Immigration Reform Bill was passed by the Senate Judiciary Committee and has begun debate on the Senate floor.  While debating the bill on the Senate floor, it is my hope that a special emphasis on the visa numbers is analyzed and discussed.  It is my opinion that the current Immigration system has been severely damaged due to the insufficient Immigrant Visa Numbers and the lack of available non-immigrant and immigration visa options.  Big picture the structure of the Senate Bill is fair and does address the current problem.  But as we all know the devil is in the details and the details that caused the current immigration problem should be analyzed, solutions proposed and debated.  In other words, does Senate Bill 744 address the causes of the current immigration problem?  More specifically, are there adequate visa numbers available to eliminate the backlog and allow the current undocumented persons in the US a realistic path to citizenship?  Does the comprehensive Immigration Reform Bill address the immigration needs of persons currently outside the US so that the lack of viable visa options does not encourage illegal crossing?  So much time is focused on ensuring a secure border, which is obvious.  However, there really would not be that much demand to cross the border illegally if there are fair and available visa options.  Its not like the people that crossed the border illegally are looking to break the law and not do things the legal way.  The overwhelming majority of people that crossed the border illegally had no other choice, since our immigration system left them with no options (i.e. family immigration backlogs with wait times of 20 years +, lack of skilled and unskilled worker visas, ambiguous investment visa rules, and the list can go on and on).  This article will address the Registered Provisional Status category, and whether the proposed visa numbers will effect the adjustment of status option from Registered Provisional Status to Permanent Resident.

What is Registered Provisional Immigrant Status?

There are an estimated 11 million undocumented aliens in the US.  This number could potentially be higher if you included persons that overstayed their visas and are living under the shadows.  These persons are unable to obtain social security numbers, driver’s licenses, legal employment, and live their lives as open members of their communities (i.e. unable to rent or purchase homes in their own names, have bank accounts, travel freely, etc).  The Registered Provisional Status is essentially equivalent to being a conditional resident, where undocumented persons that entered the US without inspection or have overstayed their visas and meet the eligibility requirements will be able to live in the US, work in the US, and take temporary trips outside the US upon being approved for their adjustment of status to registered provisional status.   To be eligible for Registered Provisional Status, one must have been in the US since December 31, 2011 (there are exceptions if travel outside the US was brief, causal, and innocent), have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes and penalty fees, and pass background checks. Under the Senate Bill, Registered provisional Status would allow the government one year to publish the required regulations before applications may be accepted.  So theoretically the Registered Provisional Status application process would begin within or after a year of enactment.  Upon approval of the Registered Provisional status application, the provisional immigrant will have RPI status for 6 years and may be renewable for another 6 years provided the Immigrant has been employed continuously or can prove income or assets of 100 or more of the poverty guidelines (certain exceptions may apply).  As specified above, the Registered Provisional Status is only provisional immigrant status, it is not permanent residence.  If the provisional immigrant wants to live in the US permanently, a permanent residence application will be required.

When can a Provisional Resident Apply for Permanent Residence

The main concern of the Senate is that undocumented aliens do not jump ahead of others currently waiting for an Immigrant Visa or Permanent Residence.   To be eligible for permanent residence, the intending Immigrant must have been in Registered provisional Status for at least 10 years.  In other words, if Registered Provisional Immigrants are to obtain Permanent Residence, all of the people currently waiting in line must have received their permanent residence or at least their cases have been adjudicated.   And this is where my main concern exists.  For example, unmarried Sons and Daughters of US Citizens from Mexico (the first preference of the family based immigration system) currently have a 20 year wait time.  EB3 (Skilled Immigrant Visa workers) applicants from India currently have a 10 year wait time.  Each year these backlogs keep getting worse each year.  The Senate Bill as written intends to continue to cap the amount of Family based Immigrant Visas available each year at 480,000 (minus the visas assigned to Immediate Relatives but not less than 161,000  ie. US Citizens spouses or parents of US Citizens over 21).  Moreover, the currently available 140,000 Employment Based Immigrant Visas will not be increased under the Senate Bill.  The issue becomes, since the Senate bill does not intend to increase the amount of available Immigrant Visas this year, how can the Comprehensive Immigration Bill reduce the current backlog?  I don’t pretend to be a statistician, I am an Immigration Lawyer and as an Immigration Lawyer, I focus on understanding the United States Immigration Laws and applying the law to best achieve my clients’ goals.  Understanding statistics is not taught in law school, consequently is not part of the training to become an immigration attorney.  But, I will do my best to present the data so that you can decide for yourself whether Registered Provisional Immigrants will have the opportunity to adjust status to permanent resident status and eventually naturalize under the Senate’s proposed Comprehensive Immigration Reform bill.  As of November 2012, the Department of State reported there are 4,412,693 persons on the Immigrant Visa Wait List.  The per country limit on preference related Immigrant Visas is 26,600.  On the wait-list, there are currently 1,316,118 persons from Mexico, 462,145 persons from the Philippines, 332,846 persons from India, and 240,637 persons from China.   For the detailed breakdown, please see here.  The Senate bill’s answer to eliminate this backlog is to eliminate the country cap limitations.  In other words, there will not be any increases to the amount of Immigrant Visas from the current level but a reallocation of Immigrant Visas on an as needed basis.  So on the surface it seems unlikely, but again I am not a statistician.  The purpose of this article is to raise awareness for the debate to include testimony from trusted mathematicians or statisticians in whether it is not only possible, but highly probable that based on historical data the backlog will be reduced by 2021.  Surely as an Immigration Lawyer I am not trained for this and I highly doubt an average Congressman can make the necessary projections.  The available Immigrant Visa numbers should be supported by sound math and statistics based on sound data.  I don’t know how to go from a wait list of 4.4 million to 0 in 7 years with only 300,000 available Immigrant Visas (ie. 160,000 family preference Immigrant Visas + 140,000 Employment Immigrant Visas).  This is an important issue, because it is great that the Senate is trying to address the problem and at least for 10 years 11 million+ people without status will have status, but Provisional Status is only good for up to 12 years, is my understanding.  300,000 multiplied by 12 years is 3.6 million.  It is closer to the current 4.4 million on the waiting list but keep in mind, if 11 million people apply for Registered Provisional Status and eventually adjust to permanent resident status and there are only 300,000 Immigrant Visas available each year, and there is still a backlog, where do the available visa numbers come from?  Again I am not a statistician but rather an Immigration Lawyer doing simple math.  I don’t pretend to know if my math is correct, but it should be something debated in the senate.  Providing Registered Provisional status to the current situation is significantly better than doing nothing but if the math is correct, it’s like a doctor giving his patient a cure for 12 years as opposed to a cure for a lifetime.  The Senate has this chance to fix a problem  for good, will they give the patient any medicine, medicine for 12 years, or medicine for a life time. By Attorney Gerald Cipolla

The Coincidence of Immigration Reform, the Tragic Bombings in Boston and 9-11

Boston Marathon Bombing - Chicago Immigration lawyer

Tragedy in Boston Marathon Explosion

The Boston Marathon Bombings are a tragic event.  Our hearts go out to the victims and their families.  Unfortunately, these types of incidents have been a reality in the world we live in.  The September 11th bombings are an event we should not and will not ever forget.  The loss of life, the emotional suffering is something unimaginable.

Terrorist Attacks – Impact on Immigration Reform past and present

PAST: The reason I bring these events up in an Immigration blog article is there are some very real lessons from an immigration perspective.  On September 5 2001, just days before the September 11th attack, President George W. Bush and President Vincente Fox of Mexico met at the White House to discuss Comprehensive Immigration Reform.  This was a follow up meeting in which the Bush and Fox Administrations had been meeting for many months.  The result of the meeting was a set of principles in which both President Bush and President Fox agreed upon.  As Colin Powell stated, “We’ve made a great deal of progress with respect to principles. We are now getting ready to move from principles into specifics and programs, and how would one design such programs.”1 It was unrealistic to expect legislation to be announced out of this meeting as its up to the President of the United States and Congress to legislate, not a foreign President.  However, Mexico did and still does have a clear interest in the migration system in the U.S.  In 2001 it was reported that there were  3 million Mexicans living illegally in the United States.2 According to the U.S. Census Bureau in 2000, there were 8 million undocumented persons living in the U.S. 3 As President Fox stated, “[W]e want some agreement on migration, taking into considerations two universes: One has to do with those Mexican workers that are here in the United States but are contributing to the U.S. economy, that are paying taxes, that are behaving; those right now are illegal. We want to regularize their situation so that they can be here without having to hide away, without having to have their rights violated, and that they would have a status of regularization that will permit them to have all the rights, and keep on working hard, and at the same time go back and forth to Mexico.”  Clearly, Mexico did and does have an interest in seeing its Nationals have a means of migrating into the U.S. and living legally in the U.S. Congress also appeared to be receptive to Comprehensive Immigration Reform and in particular to address the Immigration Problem in the U.S.  Congressman Tancredo, head of the Congressional Immigration Reform Caucus stated  that a “guest worker program we can develop — one that will work, I hope we can develop,” said Rep. Tom Tancredo, R-Colorado. “But it should not be, and will not be, attached to any sort of amnesty.” 4 September 2001 seemed to be forming a basis for a much needed Comprehensive Immigration Reform.   Fast Forward less than a week and we had the bombings of September 11th.  A tragic event that understandably changed America.  Part of that change was how we view migration into the U.S. and securing entry into the U.S., whether crossing the border through Mexico or entering the U.S. through an airport.  Unfortunately, Comprehensive Immigration Reform was left in the shadows of securing our borders.  The Department of Homeland Security was formed and Immigration and Naturalization Services became United States Citizenship and Immigration Services under the Department of Homeland Security.

Immigration Reform 2013 Post Boston Explosion

PRESENT: Fast forward almost 12 years to 2013.  According to PEW Hispanic Research Center, we now have 11.1 million undocumented persons in the United States (as of 2011), 58% of whom are from Mexico (roughly 6.5 million).  In a matter of 12 years since the last time Comprehensive Immigration Reform was in the air and almost seemed like a certainty to pass, the undocumented person population in the U.S. grew from 8 million to 11.1 million, of which the Mexican undocumented population grew from 3.9 million to 6.5 million.  The problem has grown by approximately 50%.  Thus, approximately 3.5% of the U.S. population consists of undocumented workers. 5 It’s 2013, and Comprehensive Immigration Reform is in the air.  I would not call it a certainty to pass but the chances look as good as they did in 2001, just before the 9-11 attacks.  Yesterday’s Boston Marathon Bombings don’t appear to have the same level of impact on our country as the September 11th Terrorist Attacks, likely because we’ve unfortunately been through this before but also the Boston attacks seems to be much smaller in comparison.  This article is not intended to compare the two events, but rather state that it is very ominous that on the verge of Immigration Reform in both 2001 and 2013, we have these tragic events. The Senate Gang of Eight went ahead today as planned and unveiled details of their Comprehensive Immigration Reform Plan today, just one day after the Boston Bombings.  That is a sign of optimism that our leaders will stay focused on Immigration Reform and the debate will not spill over to only securing our borders.  Clearly Immigration Reform should include measures for securing our borders.  However, its important that we address all of our problems.  This is our best chance to get it done since 2001.  All the interested parties seem to have a vested interest to get this done.  Religious leaders want to grow their churches and make sure their followers have legal status in the U.S.; businesses need “skilled” and “unskilled” workers from all walks of life including undocumented workers; Police and National Security need to have a consistent framework in which to understand the rights of Undocumented workers (i.e. Arizona should not treat undocumented workers differently than Illinois or New York, etc); Politicians have an interest in winning the Latino vote as well other proponents of Immigration. Let’s hope that we have learned and adapted to the realities of the September 11th attacks and that we are able to continue forward with Comprehensive Immigration Reform after the tragic Boston Marathon Attacks. By Attorney Gerald Cipolla  ____________________
1 Please see University California Davis Migration Department October 2001 News Article located at http://migration.ucdavis.edu/mn/more.php?id=2463_0_2_0
2http://archives.cnn.com/2001/ALLPOLITICS/09/04/bush.fox.visit/index.html
3 http://www.cis.org/articles/2001/censusrelease1001.html
4 http://archives.cnn.com/2001/ALLPOLITICS/09/04/bush.fox.visit/index.html
5 The US Census Bureau estimates that there are approximately 314 million persons living in the US http://www.census.gov/popclock/.
  Cipolla Law Group is a full service immigration law firm located in downtown Chicago, Illinois.  We have over 25 years of combined experience helping individuals and businesses to fulfill their immigration goals.  Our immigration attorneys in Chicago strive to deliver the best immigration representation to our clients and have proven track record to win your case.  Contact us for a consultation today.  

Foreign Entrepreneurs and the Revolving Door

 

There is a fascinating book that recently came out authored by Professor Vivek Wadhwa and Professor Dan Siciliano entitled “The Immigrant Exodus”, which can be found at this link.  I have not had the opportunity to read this book as it just came out on October 2, 2012 but reviewed the synopsis while researching this article.  In a nutshell, the book looks to argue that the amount of U.S. immigrant-founded start-ups is down, which is the first time in history.  The implications are a brain drain from the U.S. as foreign entrepreneurs take their ideas and capitals outside the U.S. having dire consequences to our economy.  This is something I have been arguing in this blog and to my peers and friends.  As an immigration attorney in Chicago, it is very frustrating to watch.  I have many clients come in to my office, tell me about this great business that they would like to start, where they would like to start it, and how they want to get it going.  The first question is, how do we go about getting my immigration status in line with my objectives? Unfortunately, the current immigration laws are not that entrepreneur friendly.

Investor Visa vs. Investor Green Card


There are essentially 2 non-immigrant visa options and for all practical purposes 1 green card option.  The non-immigrant options are an E1 Treaty Trader Visa and E2 Treaty Investor Visa.  Generally for investment in the U.S., E2 Treaty Investor is the visa of choice.  According to USCIS, an E2 visa “allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.”  The operative word is treaty country.  Our biggest employment based countries are China and India.  Unfortunately, there are not treaties between the U.S. and China.  Consequently, E2 visas are not available for persons from China and India.  The next analysis for clients from China and India is whether an L1 visa is available.  According to USCIS, an L1 visa “enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.”  The bad news about L1 visas is since 2009 L1 along with other visas such as H1B visas and O-1 visas have been scrutinized by USCIS.  L-1A visa petitions denial rates have increased from 8% in 2007 to 14% in 2011.  Requests for Evidence increase from 4% in 2004 to 51% in 2011.  These statistics were provided by USCIS and analyzed by the National Foundation For American Policy in February 2012 and can be found at this link.  Clearly the Request for Evidence statistics and denial rates indicate that L1 Intracompany transferee petitions are scrutinized much more compared to previous years.  As NFAP suggests, this added scrutiny on employer’s petitions despite no changes in the law are “costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States”.  In a time where the economic recovery is fragile, we should be encouraging any and all legal investment.  I would argue that it’s not the fault of USCIS or the Consulates for the tough adjudication policy, but rather Congress for the inadequate laws for foreign entrepreneurs and investors.  For Example, if you’re from China or India, there is not even an investor visa available to you as E2 visas do not apply.  If you are from China and India and have an overseas company and want to expand to the U.S., you can potentially transfer executives, managers, and key employees via an L1.  However the problem is that small company L1 visa cases are generally scrutinized more than large companies.  Most start ups or new enterprises are small companies.  The only other practical choice is an EB5 where an alien must invest $500,000 to $1,000,000 and create 10 full time U.S. jobs within 2 years.  For a new company, $500,000 to $1,000,000 can be impossible to obtain as the source of funds must come from the investor (ie. not a loan, but rather the investor’s actual own funds).  It is certainly not impossible to obtain an L1 or E2 (unless you are from China or India) or to obtain an EB5 if you have $500,000 to $1,000,000 to invest in a new idea that will create 10 full time U.S. jobs, the audience is definitely limited as opposed to broadened.  Hence, this may be a reason why foreign entrepreneurship in the U.S. is down, as Vivek Wadhwa’s book “The Immigrant Exodus” suggests. Now that the problem has been established and some of the causes isolated, what are the solutions.  Simple, get rid of treaty requirements so that persons from all country’s can benefit from the E2 requirements.  Second, allow for previous investments made in E2 businesses to count towards the EB5 investment.  I have had many clients raise the point that they have a successful business and want to convert their E2 into an EB5.  In most circumstances, a fresh $500,000 or $1,000,000 is needed, depending on the location of the business.  Third, since E2 visas are renewable indefinitely, provide a specified amount of time such as 10 years for E2 visa holders to convert the E2 into a green card.  Surely after 10 years a person operating their business would like to call themselves a permanent resident.    What are the chances of these suggestions being implemented?  Impossible to say, but Mitt Romney’s plan seems to suggest it’ll layout a similar program.  However, we have seen so many broken political promises that we’ll believe it when we see it.  Assuming these suggestions are taken, I believe that investors from around the world, students studying inside the U.S. that have an idea and some source of capital, would choose the United States as a place to set up their business.  What would be the benefit?  JOBS and lots of them!

Deferred Action Process for Childhood Arrivals

On August 3, 2012, U.S. Citizenship and Immigration Services (USCIS) released details regarding the latest deferred action process for childhood arrivals.  This announcement, along with the FAQs provides information regarding the eligibility and process of the deferred action application.  As discussed in our previous blog post, you may consider filing for a deferred action if you:
  1. were under the age of 31 as of June 15, 2012;
  2. came to the U.S. before turning 16 years old;
  3. have continuously lived in the U.S. since June 15, 2007, up to the present time;
  4. were physically present in the U.S. on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. entered without inspection before June 15, 2012 or your unlawful immigration status expired as of June 15, 2012;
  6. are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
In considering whether the deferred action application is an appropriate option for you, the USCIS have answered a list of frequently asked questions below:
  1. What is deferred action? Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Deferred action does not confer lawful status upon an individual. In addition, although an individual whose case is deferred will not be considered to be accruing unlawful presence in the United States during the period deferred action is in effect, deferred action does not excuse individuals of any previous or subsequent periods of unlawful presence. Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time at the agency’s discretion.
  2. What is deferred action for childhood arrivals? On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization. Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth in the Secretary of Homeland Security’s memorandum.
  3. If my removal is deferred pursuant to the consideration of deferred action for childhood arrivals process, am I eligible for employment authorization? Yes. Pursuant to existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.
  4. Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order? This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action for childhood arrivals, you must submit your request to USCIS – not ICE – pursuant to the procedures outlined below. If you are currently in immigration detention and believe you meet the guidelines you should not request consideration of deferred action from USCIS but should identify yourself to your detention officer or contact the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday – Friday) or by email at [email protected].
  5. Do I accrue unlawful presence if I have a pending request for consideration of deferred action for childhood arrivals? You will continue to accrue unlawful presence while the request for consideration of deferred action for childhood arrivals is pending, unless you are under 18 years old at the time of the request. If you are under 18 years old at the time you submit your request but turn 18 while your request is pending with USCIS, you will not accrue unlawful presence while the request pending. If your case is deferred, you will not accrue unlawful presence during the period of deferred action. Having action deferred on your case will not excuse previously accrued unlawful presence.
  6. If my case is deferred, am I in lawful status for the period of deferral? No. Although action on your case has been deferred and you do not accrue unlawful presence during the period of deferred action, deferred action does not confer any lawful status. There is a significant difference between “unlawful presence” and “unlawful status.” Unlawful presence refers to a period an individual is present in the United States (1) without being admitted or paroled or (2) after the expiration of a period of stay authorized by the Department of Homeland Security (such as after the period of stay authorized by a visa has expired). Unlawful presence is relevant only with respect to determining whether the inadmissibility bars for unlawful presence, set forth in the Immigration and Nationality Act at Section 212(a)(9), apply to an individual if he or she departs the United States and subsequently seeks to re-enter. (These unlawful presence bars are commonly known as the 3- and 10-Year Bars.) The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States.  Because you lack lawful status at the time DHS defers action in your case you remain subject to all legal restrictions and prohibitions on individuals in unlawful status.
  7. Does deferred action provide me with a path to permanent residence status or citizenship? No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
  8. How old must I be in order to be considered for deferred action under this process? If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of deferred action for childhood arrivals, you must be at least 15 years of age or older at the time of filing and meet the other guidelines. If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of deferred action for childhood arrivals even if you are under the age of 15 at the time of filing and meet the other guidelines. In all instances, you cannot be the age of 31 or older as of June 15, 2012 to be considered for deferred action for childhood arrivals.
  9. If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process? No. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for deferred action under the new process except where DHS determines there are exceptional circumstances.
  10. If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings? If you have submitted a request for consideration of deferred action for childhood arrivals and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you a Notice to Appear.
  11. Do I need to hire a lawyer? It depends.  If you have any past criminal conviction or fraud or are in removal proceedings, have a final removal order, or have a voluntary departure order and are not in immigration detention, you should consult with an experienced immigration lawyer before filing for the deferred action application.
  12. When can I file a request for consideration of deferred action for childhood arrivals? Beginning August 15, 2012, you will be required to submit your request for consideration of deferred action to USCIS.  The application form is still currently being developed by the USCIS but will be available this Wednesday (August 15, 2012).  All requests received before August 15, 2012 will be rejected.
   

“Blueseed” – a Investor Visas and Work Visas Black Market for Entrepreneur

I recently read an article about a cruise ship intended to house start up company’s and their entrepreneurs and employees off the shores of Northern California within close proximity to Silicon Valley.  As you know Silicon Valley is one of the most important technology and entrepreneurship hubs in the United States and world.  It is a magnet of some of the greatest minds in the world, mainly in technology and business, as well as in other disciplines.  Silicon Valley is home to start ups and now established company’s such as Google, Facebook, Hewlett Packard, and Cisco, just to name a few. The article states that the “idea behind Blueseed is to provide a visa-free locale where foreign entrepreneurs can create technology companies that utilize resources in Silicon Valley without having to deal with the cumbersome process of obtaining a U.S. visa. As an Immigration Lawyer, that is really a powerful quote.  In other words, businesses and entrepreneurs from the U.S. and around the world believe that the current U.S. immigration system is so inadequate that they must look for alternatives or go to extreme measures to have the opportunity to start a business or hire overseas talent.   The mere concept is ludicrous, not to quote Mike Tyson.  Maybe I am living in Cipolla World, but it just seems logical that if an employer wants to hire someone, whether from overseas or in the US, they should have the right.  The process should be easy and not take a lot of their time.  Of course they should have to go through a process of proving that they meet the legal requirements, i.e. if they are an overseas investor they should need to prove that they are not a criminal, they have working capital, they intend to start a business, and they will create U.S. jobs.  In a nutshell, these are the general requirements and purpose of an some of the most popular investor visa/green card categories like the EB5 Investor Green Card and an E2 Treaty Investor Visa. The purpose of the EB5 Green Card and E2 Treaty Investor Visa is to attract overseas capital to be invested in the U.S. so that U.S. jobs can be created. It seems very logical that overseas capital that creates jobs helps create consumption in the U.S.  Someone that has a job will not live off the government, they will be able to purchase a home or rent an apartment, buy food and other necessities, pay for professional services such as doctors, accountants, lawyers, realtors, etc, and spend money on discretionary items such as restaurants and travel.  From the government’s interest, this overseas capital creates a higher tax base.  Excuse me if my logic is not supported by formal statistics, but I read enough business literature and have studied long enough to grasp these principles, so hopefully my argument does not require formal statistics. The other issue is capital that is currently in the U.S. that has an idea, wants to invest in the idea, and needs the human workforce to develop the idea into a business that creates jobs and benefits society.  In other words, this capital does not discriminate, it just needs the best women and men for the job, whether American born or foreign born.  After all these investors are taking risk so they should have the right to hire whom they please.  To take it a step further, the laws should be built to accomodate these investors so that they can hire U.S. workers and overseas workers.  Additionally, the laws should be developed to protect America, allowing people in the U.S. for the purpose stated, within the time frame needed, and to essentially prevent criminals from entering the U.S.  It is pretty straightforward.  How many visas are the right amount?  Let the market dictate.  It creates so many imbalances to dictate to the market place how many H1B Visas are the right amount, or how many EB1 Green Cards are the right amount.  It is the same principle as what should the price of soybeans be?  I have no idea, and likely the government has no idea.  The only parties that know are the buyers and the sellers, what’s a willing buyer willing to pay, and a willing seller to sell for.  Same principle, how many H1B visas or NIW Green Cards are the right amount?  Let the market place answer this question.  Let the employers say how many H1B visas are the right amount.  Coming up with an arbitrary amount of 65,000 (H1B cap) seems, well, arbitrary.  What if we are in a recession and only 15,000 are the right amount, or we are in a boom and 250,000 are the right amount?  If employers and investors are able to prove their case based on reasonable and logical laws with a relatively straightforward and efficient process, then they deserve the visa for the employee or investment.  The regulation on the legal requirements and the quantity of green cards and visas has created a black market for human capital and investment.  Case in point is project Blueseed, the cruise ship intended to house high tech companies to circumvent the U.S. Immigration System.  America is missing out on the added benefits that diversity and overseas people can bring.

Two years “deferred action” to illegal immigrants – A red X on your back?

Definition of “deferred action”

The term “deferred action” as discussed in our previous blog post is an administrative discretionary act, not to prosecute or deport a particular alien for a specific period of time, usually for extraordinary humanitarian or law enforcement purposes. According to the new Deferred Action Announcement, certain young people who were brought to the United States without inspection as young children, do not present a risk to national security or public safety, and meet several key criteria will not be prosecuted and be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. These young illegal immigrants are eligible for deferred action based on Immigration’s reasoning of humanitarian reasons if they:
  1.  have come to the United States under the age of sixteen;
  2. have continuously resided in the United States for at least five years preceding June 15, 2012 and are present in the United States on June 15, 2012;
  3. currently be in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. not be above the age of thirty.

Deferred Action: A Red X on your back?

Certainly this is a step in the right direction, although a very slow step for what is really needed to be done to reform immigration in the US.  A question we have been receiving quite often as of late is related to eligibility.  As an Immigration Lawyer, we are only able to understand the laws, understand our clients situations, and set forth the pro’s and con’s or risks and rewards for our clients given the law and the client’s circumstances.  Although a client may be eligible for the deferred action, it may not be for everyone.  In particular, if you meet the eligibility requirements above, should you apply?  Well maybe yes, but maybe no.  What if you are in the country and have no prior record, meet all of the above requirements?  Should you proactively apply for this type of action?  The answer is I don’t know right now.  A big reason is this humanitarian reason is only good for 2 years.  What if the President changes his or her mind?  What if Congress attempts to strike the law down?  What happens if 2 years is up and there is no sequel to the 2 year deferred action program?  What do you do?  Are you vulnerable?  With the Arizona law recently partially passed whereby Police can check someone’s immigration status while checking for other laws, there is considerable risk.  What if someone has deferred action for 2 years, then in 2014 the deferred action law is not extended, there is no sequel, and all of a sudden someone in the US without any immigration status is stopped by the Police for a routine traffic violation.  Does this person have an X on their back for removal proceedings?

How about the Dream Act and other paths to Green Card?

As an immigration lawyer, this is something that we need to think about.  Or alternatively, is this just the beginning?  Will the Dream Act finally pass after the election?  Will someone eligible for the deferred action eventually be eligible for either types of immigration status if the requirements are met such as a marriage green card?  Or if they are an investor and would like to invest in a business so that they may be eligible for an E2 Treaty Investor visa?  Alternatively, if they graduate college and receive a job offer, can this person that is on deferred action eventually  change their status to an H1B visa?  Or better yet, they have reached the top of their field and would like to self-petition to an EB1 Extraordinary Ability.  In other words, will eventually the other immigration laws that afford immigration status in the US be extended to the persons meeting the requirements above.  Again, I don’t know the answer unfortunately.

Deferred action: Too good to be true?

So, the question is should someone that is not in removal proceedings proactively apply for the deferred action process?  That is the analysis and debate Immigration Lawyers around the country are debating and discussing.  Or is this a kick the can approach for our politicians that will place an X on the back of someone that does apply for deferred action?  As more information becomes available we will analyze and discuss.  Feel free to contact us for a consultation on whether you are eligible for deferred action and whether it is right for you.

Immigration & Current World Events

There are many significant world events occurring in the last couple weeks, the Tsunami in Japan and protests in the Middle East. Embassies and Consulates around the world may not be open during protests or may only be partially running. The Tokyo Embassy was open on Monday March 14 following the tragic Tsunami. The fact that the Embassy in Tokyo opened today was extremely impressive given the extent of physical and emotional damage from Friday’s Tsunami. Our prayers go out to the people of Japan. We expect that the various Consulates in the Middle East will be partially open. Protests in areas such as Bahrain may make it difficult for normal Consulate activities such as Immigrant Visa and I-130 filings. The Embassy in Egypt has suspended visa services due to security concerns. We encourage our clients to contact us in advance of interviews and filings to determine if the Embassy/Consulate is open.

Approval Notices “Recall”?

Yesterday, the USCIS posted an update to alert certain non-immigrant worker and change/extend non-immigrant status applicants that their approval notices may be incorrect/incomplete and should be disregarded. Between January 20 and January 27 this year, the USCIS issued approximately 500 incorrect approval notices for certain I-129 and I-538 petitions. If you happened to be one of the 500 recipients of these incorrect/incomplete notices, the USCIS advised that you should not attempt to use them. The USCIS has started mailing new approval notices with corrected information to affected I-129 and I-538 petitioners. Click here to read this USCIS update.