|September 5, 2014||Posted by admin under Uncategorized|
My latest newsletter has been published (Summer 2014). Enjoy!
|January 27, 2012||Posted by admin under Admission & Admissibility||
U.S. residents, also called “green card” holders, often hold strong ties to their home country. They may have family back home or a business they are still tending to. They may stay outside the United States for more than a year intentionally or accidentally or because circumstances arose beyond their control.
LPRs will hear from friends, family or a lawyer who tell them that staying outside the United States for more than one year will cause them problems. They are right. Customs and Border Patrol (CBP) may deny your admission for having abandoned your permanent residence (and it will affect you when you apply to become a naturalized U.S. citizen). This article discusses the former.
What can you do? Depending on your situation, the options below may protect you from losing your lawful permanent resident status.
- Apply for a Reentry Permit. A re-entry permit is good for 2 years. The application requires that USCIS capture your biometrics (fingerprints) for which you must be present in the United States. Your biometrics appointment will be scheduled within 2-3 months from the date that you file your application for a reentry permit.
- Apply for a Returning Resident or “SB-1” Visa from the US Embassy in Your Country. This visa is very fact and circumstance specific and is available to LPRs who have been outside the United States for one year or longer (or two years or longer where a Reentry Permit had been obtained) due to circumstances beyond their control. Retention of all documents to explain your situation is essential. Even if the SB-1 Visa is granted, be prepared to explain your case again when you reach a U.S. port of entry.
- Applicants for lawful permanent residence, that is those who have a Form I-485 pending with USCIS, must obtain an “Advance Parole” document before departing the United States. If you have no other status in the United States and you are waiting for your green card application to be approved, you will not be allowed to reenter the United States without an approved and valid advance parole document.
|March 3, 2011||Posted by admin under Admission & Admissibility||
When entering the United States all travelers go through “U.S. Customs”. We are all familiar with the lines at each station where the agent checks our passport and ask questions. These agents are known as Customs and Border Patrol (CBP) officers and they are empowered to grant or deny your admittance to the United States. They are not lawyers, but they are trained to have knowledge of the basic laws governing proper documentation, admissibility and classification of foreign persons into categories such as arriving alien, lawful permanent resident, nonimmigrant visitor, etc.
There are many potential reasons why someone could get turned away at the border. The traveler may have used fraudulent documents (or no documents) to obtain admittance, may be a lawful permanent resident who stayed outside the United States for too long without advance permission, failed to apply for “advance parole” while an adjustment of status application was pending, been pulled aside due to mistaken identity and a “false hit” was made in CBP’s Lookout system, or the traveler may have a criminal history that prevents their lawful admission.
The CBP has its own internal records and the agency claims that they only go back as far as 1982. The truth is the records go back even further and an unwitting traveler may be pulled into secondary inspection and questioned about a crime for which there has not been a disposition yet (only an arrest) or which is many decades old. The CBP officer may tell you to obtain a copy of your criminal disposition (result) for that conviction before you seek admittance again. Until you become a naturalized citizen, it is important to carry this information on you when you travel.
There are a number of ways to address the issue. You or your lawyer can submit a request through the Traveler Inquiry Redress Program (www.dhs.gov/trip). After you contact them online, you will receive a Traveler Redress Form which the traveler must sign and date and submit along with a copy of the biographic page of the traveler’s passport. Attorneys should be aware that clients must sign Form 590, which authorizes the attorney to speak to CBP on behalf of the client. If the problem appears serious, the traveler should consult with a lawyer as he or she may need to apply for a “waiver” to gain admittance. If you are seeking to enter the United States on a nonimmigrant (or temporary) visa, there is no specific form to fill out. Your attorney can prepare a nonimmigrant waiver for you. If you have been denied admittance on an immigrant visa, your attorney can evaluate your eligibility for an immigrant waiver depending on your immigration history and the reason for the denial.
Oversea consulates and U.S. embassies are charged with issuing both immigrant and nonimmigrant visas. Travelers should keep in mind that just because your home consulate or embassy issued your visa, this does not guarantee that you will be admitted by CBP at your port of entry into the United States. If your lawful status in the United States is anything but a U.S. citizen (for example, a lawful permanent resident or nonimmigrant visa holder) you should consult with a lawyer before planning a trip outside the United States, especially if you have a criminal arrest or conviction anywhere in your history.
|February 22, 2011||Posted by admin under Business Immigration||
Is your company sending you to the United States? Do they want to send you permanently or temporarily? Are you coming to the U.S. to attend a meeting or conference or take steps to get a business started or is your company’s U.S. location ready for the real deal?
An “L” visa is for intracompany transferees. From an immigration perspective it is probably one of the more challenging visas to obtain. When the government is not satisfied with the amount of evidence the petitioning company has submitted it issues a Request for Evidence, “RFE” for short, and with L visa petitions, it is usually four or five pages long.
Why is this? One reason is because case precedent and U.S. policy is downright vague on which job duties constitute managerial or executive, and many adjudicators appear untrained on the complicated nuances of L visas. Some are overturned on appeal, many are not. RFE’s are time-consuming and expensive for the client who has to pay attorney’s fees. Moreover, they delay the client’s travel to the United States.
How can an RFE be avoided?
Planning. Before you retain an attorney to represent you in applying for an L visa, you should first make an honest assessment as to whether your U.S. entity is ready for a manager or executive. You may be a small business — not a disqualifying factor in applying for a L visa — but the size of your business may lead USCIS to believe that your business is not ready for a manager or executive, even considering the reasonable needs of your organization. A safer approach is to plan well in advance by gathering documents and preparing a business plan for the U.S. location (especially if the U.S. office would be considered a new office meaning it has been engaged in business for less than one year) and taking those documents to your attorney for an honest assessment.
Gather documents. There are two broad areas that your attorney must successfully pitch to the government on your behalf. The first is that all of the entities involved are qualifying organizations under the immigration regulations and have the requisite relationship to one another (for example, parent, subsidiary, branch, or affiliate). You must supply your attorney with, for both the foreign entity and the U.S. entity, articles of incorporation, stock certificates, corporate income tax returns, company brochures / literature and joint venture agreements. Rarely will the documents specify the relationships between the parties, it must be determined through other types of evidence. The second area to prove is that the beneficiary – employee in fact qualifies as a manager or executive and is not merely a “manager” or “executive” in title who is actually performing lower-level or non-qualifying duties. You must provide your attorney with one of each of the following for the foreign position and the U.S. position: the beneficiary’s job description, breakdown of job duties with percentage of time devoted to each duty, and an organizational chart. You should also provide a copy of the beneficiary’s resume and diploma/ degrees. These are only the initial documents that your attorney may ask for. In the planning stage, you should also get position descriptions for every staff member employed under your ultimate direction with a list of duties performed and percentage of time spent on each job duty. The beneficiary’s job description will be very important and should be crafted carefully.
Non-Immigration Issues. If your company does not already have a corporate or tax lawyer, it should get one. Your immigration attorney will need to confer with him or her on various issues pertaining to your case, with your permission. Many immigration lawyers do not practice corporate or tax law, yet issues related to these areas of the law will arise in preparing a strong L visa petition.
Patience. Clients will get frustrated, particularly when the L visa petition gets to the RFE stage. The Department of Homeland Security (USCIS) will be asking for all kinds of information, ranging from proof of ownership and control between the petitioning company and the foreign entity, sales invoices, bank statements and stock ledgers. Between the amount of documents that your attorney will be requesting and what seems like an eternity in gathering all the necessary information, clients will lose patience and may start to question the capabilities of even the most seasoned lawyers.
Competence. All attorneys are under a duty of competence per the Rules of Professional Conduct governing attorneys. You should expect no less. On that note, clients might find attorney’s fees to be steep on L visa petitions. This is because they present challenging issues and tend to be highly time-consuming, for both the attorney and his or her support staff.
Once your attorney receives your initial documents, allow him or her to spend several days analyzing them to determine whether you are eligible for the L visa. If you are not eligible, there is no need to continue. If you plan to eventually apply for your green card through the streamlined employment-based first-preference (“EB-1″) category for managers and executives, make sure your attorney is aware of this very early in the case. This is available for applicants who were employed as managers or executives (but not who were employed as employees with specialized knowledge) with the foreign entity. If the L visa is granted as a “new office” petition, the authorized period of stay will not exceed one year. During this time the petitioning company and beneficiary should work closely with their attorney in planning to apply for an extension before the one year is up. Clients should expect that the attorney will apply for the EB-1 green card after the first extension has been granted.
The government is committed to providing a path for U.S. admission for businesses and entrepreneurs but they have been strict with these visas in recent years. Proper planning well in advance of filing the L visa petition and patience for the long road ahead will minimize stress for both you and your attorney.
|January 25, 2011||Posted by admin under Criminal, Deportation & Removal, Waivers||
The Fourth Circuit ruled earlier this month in Crespo v. Holder, __ F.3d. __, that a deferred adjudication may not be a conviction for immigration purposes. The respondent was a Peruvian who had overstayed his tourist visa in 1997. When his wife, a U.S. citizen, petitioned for his green card, respondent found that he needed a “waiver” to overcome an earlier conviction for possession of marijuana under Virginia Code 18.2-251.
This provision of the Virginia Code applies to a first offender who pleads either guilty or not guilty. After such plea,the court may, if it finds facts that are sufficient to justify a finding of guilt, defer proceedings and place the offender on probation. This “deferred adjudication” also means that the court has not entered a judgment of guilt.
The Court delineates the five circumstances by statute under which a deferred adjudication can still be considered a “conviction” for immigration purposes and subsequently ruled that respondent met none of them. One of the prongs represented a snag for the government and that was where “a judge or jury has found the alien guilty”. The Court ruled this meant a finding of guilt by jury because to interpret it otherwise would render Congress’s wording of the other four factors superfluous.
This case is a victory for immigrants and lends credence to the principle that lawyer’s advise their clients not to sign or admit to anything. Had respondent pled guilty or made admissions of fact sufficient to warrant a finding of guilt – a factor that is likely met by defendant signing something – the outcome would have been different. Since the deferred adjudication in this case was not a conviction under the immigration laws, respondent was free to pursue the waiver in connection with his adjustment of status application.
|January 23, 2011||Posted by admin under Family-Based Immigration||
Family-based preference category 2A is backlogged again, after six or so blissful months where lawful permanent resident petitioners across the country enjoyed the prospect of speedy family unification. USCIS is now adjudicating petitions that were filed by LPRs for their spouses or children under 21 prior to January 1, 2008. To provide contrast, last month USCIS was adjudicating petitions in this category that were filed prior to August 1, 2010, which basically made that category close to current!
This is disappointing news for thousands of LPRs whose I-130 petitions were pending adjudication or otherwise hadn’t been sent to the National Visa Center yet. On the hopeful side, each month brings different processing estimates from USCIS and maybe they will be able to catch up again with processing speed. Much will depend as well on how many petitions are filed.