Categories
Articles Latest News

Please Don’t Make Me Leave!

Cancellation of Removal for Non-Lawful Permanent Residents

By Dev B. Viswanath, Esq.

 

            A non-lawful permanent resident (someone without a green card) who is in removal proceedings may be eligible for cancellation of removal. If a non-LPR is not scheduled to have a hearing in Immigration Court or they already appeared in Immigration Court and their case is closed, they will not be able to apply for cancellation of removal. To apply for cancellation of removal, the non-LPR must submit Form EOIR-42B with supporting documents showing that they meet all of the eligibility requirements to the Immigration Judge and the determination to grant this relief is discretionary.

            Am I eligible for cancelation of removal? 

In order to be eligible for cancellation of removal the non-LPR must have been continuously physically present in the United States for at least ten years. The ten-year physical presence period starts at the date of entry and stops either when a Notice to Appear in immigration court by the Department of Homeland Security is issued, or if certain criminal offenses are committed, or if they have a single absence from the United States of 90 days or multiple absences from the United States adding up to 180 days or more. A Notice to Appear is a document given to a non-LPR to put them on notice of deportation or removal proceedings.

The non-LPR must also have been a person of good moral character during the ten-year period of presence. The non-LPR must also not have any criminal convictions which would render them ineligible for Cancellation. The non-LPR would need to show that possible deportation would cause “exceptional and extremely unusual hardship” to their LPR or U.S. citizen qualifying relative. A qualifying relative is a spouse, child, or parent. To meet the standard of exceptional and extremely unusual hardship the non-LPR must show that their deportation would cause the qualifying relative to suffer hardship which would be substantially worse that the hardship normally expected from deportation or separation.

Cancellation of removal can be granted only by an Immigration Judge and the non-LPR needs to present a convincing case in order to avoid an Order of Removal. Factors to be considered are whether there are many family members here; whether there are US born children who will have difficulty relocating, medical problems, financial considerations and other equities which may get weighed by the Judge.  Witnesses, medical professionals, and other experts may often be used.  However, if granted, the person will not only be prevented from being deported, but he will also be granted a green card.  There are a limited number of Cancellation of Removal grants that are allowed per year, and currently there is a backlog, which means that even if one were to be granted by the court, it may not happen immediately.  However, this relief is sometimes the only chance that an individual may have to remain in the US if in proceedings and is a very valuable and useful form of relief to the right individual.

Read More

Categories
Latest News USA

O-1 Visa: The Cream of the Crop, Rise to the Top!

By  Dev B. Viswanath, Esq.

The O-1 nonimmigrant visa is a temporary work visa available for an individual who has an extraordinary ability or achievement. The O nonimmigrant visa can be divided into four different categories:

  • O-1A: individuals with a special ability in the sciences, education, business, or athletics
  • O-1B: individuals with a special ability in the arts or special achievement in the motion picture or television industry
  • O-2: individuals who will join an O-1 nonimmigrant visa holder to assist in a specific event or performance. If an O-2 is assisting an O-1A visa holder their assistance must be an “integral part” of the O-1A’s activity. If an O-2 is assisting an O-1B visa holder their assistance must be “essential” to the completion of the O-1B’s production.
  • O-3: dependents, spouse and children under the age of 21, of O-1’s and O-2’s.

To meet the requirements for an O-1 visa, an individual must show an extraordinary ability and the receipt of national or international acclaim for it. This visa is a temporary visa allowing an individual to continue work in the U.S. in the area of extraordinary ability. If an individual is applying for an O-1 visa in the motion picture or television industry, they must show some sort of special achievement coupled together with a degree of skill and recognition above that of an ordinary individual in the same field.

To apply for an O-1 visa the petitioner must file documentary evidence such as the contract between petitioner and beneficiary, an advisory opinion from a peer group or person with expertise in the beneficiary’s area of ability, and other supporting documents should also be submitted. An O-1 visa petition can also be filed by an agent who may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or the person or entity authorized by the employer to act for, or in place of, the employer as its agent. And an O1 Visa Holder may apply on their own, depending on the circumstances as a self-petition.

Under this visa individuals may live and work in the United States for an initial period of up to three years and then apply for an extension. USCIS will determine the time necessary for the extension to accomplish the initial event or activity in increments of up to one year. Any dependents of O-1 nonimmigrants, spouse and children under the age of 21 may be eligible for O3 nonimmigrant status. However, dependents are not allowed to work but they may participate in full or part time study. O3 status is granted for no longer than the period of time granted to the principal O-1/O-2 nonimmigrant.

After an O visa holder has completed their stay in the U.S. the employer is responsible for the reasonable cost of return transportation to the O nonimmigrant’s last place of residence. If an agent filed the petition for the employer, then the agent and the employer would be equally responsible for paying the return transportation cost. However, if the O nonimmigrant voluntarily resigned from their employment then they will have to pay for their own cost of transportation back home.

The O-1 Visa is a fantastic type of visa to have and utilize for work and temporarily living in the United States for a person who qualifies.  Moreover, a person who qualifies for an O-1 Visa will likely also qualify for an EB-1 Visa should they ever want to live permanently in the United States.  If you or someone you know have gained widespread recognition in a particular field of study which you think fits into what we have described above, and are interested in finding out more, please consult with an experienced attorney.

Read More
Categories
Articles Latest News

Protecting Children from ‘Aging Out’ of Petitions

By  Dev B. Viswanath, Esq.

The Child Status Protection Act
Child Status Protection Act (CSPA) which offers a method to calculate a person’s age to see of they meet the criteria of a child for immigration purposes. According to the Immigration and Nationality Act (INA) the definition of a child is a person who is both unmarried and under 21 years of age. If a petitioner applies for lawful permanent resident (LPR) status as a child but turns 21 before their LPR application is adjudicated, that petitioner will no longer be considered a child for immigration purposes. This circumstance is usually referred to as “aging out” and means that those petitioners would have to file a new petition or application, or that their petition category will convert to an adult, and for both scenarios they will wait even longer for a Green Card, or it may be that they no longer be eligible for a Green Card. To avoid children from “aging out” and having to start all over, CSPA was created and went into effect on August 6, 2002.

The meaning of a child did not change under the CSPA. The new calculated age of the child is called “CSPA age” and it allows some petitioners to remain classified as a child past their 21st birthday. The beneficiary MUST still be unmarried. The following people may take advantage of the CSPA;

  • Immediate relatives;
  • Family sponsored preference principal and derivative applicants;
  • Violence Against Women Act (VAWA) self-petitioners and derivative applicants;
  • Employment based preference derivative applicants;
  • Diversity immigrant visa (DV) derivative applicants;
  • Derivative refugees; and
  • Derivative asylees.

If a petitioner is applying for a Green Card based on one of the categories above, they are eligible for CSPA consideration if the proper forms were filed or pending on or after August 6, 2002.

Refugees and Asylees: If a petitioner is a derivative refugee, then their CSPA age is their age on the date the principal refugee parent or Form I-730 petitioner filed their I-590. If the petitioner was under the age of 21 at the time of their parent’s interview, their age froze as of that date and they will not age out. In order to qualify as a derivative refugee, the petitioner must be unmarried but they do not need to remain unmarried in order to qualify for a Green Card under INA section 209.

If a petitioner is a derivative asylee their CSPA is their age on the date the principal asylee parents or Form I-730 petitioner filed their Form I-589. If the petitioner was under the age of 21 at the time their parent’s filed Form I-589, their age froze as of that date and they will not age out. In order to be granted derivative asylum and to qualify for a Green Card under INA section 209 the petitioner must be unmarried.

Immediate Relative: If a petitioner is an immediate relative, a VAMA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAMA self-petitioning abused spouse or child of a U.S. citizen, their age is frozen on the date the Form I-130 or Form I-360 was filed. If the petitioner was under the age of 21 at the time the petition was filed, they are qualified for CSPA and will not age out. The petitioner must remain unmarried or they will not qualify for CSPA.

Family and Employment Preference and Diversity Visa Immigrants: If a petitioner is a family preference, employment-based preference, or DV applicant, their CSPA age is calculated by subtracting the number of days their petition was pending from their age on the date an immigrant visa becomes available to them. In order to qualify for CSPA the petitioner must remain unmarried. The formula is calculated based on the age of the child when the petition was filed, the number of years for the petition to become approved.  The age of the beneficiary when Visa Numbers become available.

If the petitioner is under this category, in order to use the CSPA age they must pursue to gain lawful permanent resident status within one year of a visa becoming open to them. This is called the “seek to acquire” requirement. If this requirement is not satisfied, USCIS may use its discretion to excuse this requirement if the petitioner can show that the requirement was not met due to special circumstances. Under the “seek to acquire” requirement the petitioner must:

  • Properly file Form I-485; or
  • Submit a completed Part One of Form DS-260; or
  • Have a Form I-824 properly filed on their behalf.

If an LPR becomes a naturalized citizen before their child receives their Green Card, their child’s petition is converted to either an immediate relative or family first preference case. There is also an additional amount of time that can be calculated to protect a child’s age because of the September 11, 2001 attacks, and the Patriot Act illustrates this additional protection.

The CSPA is the saving grace for so many families that have wait many, many years for their opportunity for a green card.

Read More
Categories
Latest News USA

USCIS announces H1B Pre-Registration Parameters

The initial registration period for FY 2022 will open on March 9 and run through March 25.

By Dev B. Viswanath, Esq.

 

In 2020 USCIS implemented an electronic registration process for the H-1B Lottery to meet the H1B cap on the number of visas allotted. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 H-1B registration fee for each beneficiary.

We have seen from last year’s implementation that the electronic registration process has streamlined processing by reducing paperwork and data exchange, and has provided overall cost savings to employers seeking to file H-1B cap-subject petitions.  We basically do not have to prepare and file a full H1B petition until the matter is selected by USCIS through the random selection.

Under this process, prospective petitioners (also known as registrants), and their authorized representatives, who are seeking authorization to employ H-1B workers subject to the cap, complete a registration process that requires only basic information about the prospective petitioner and each requested worker.

The initial registration period for FY 2022 will open at noon Eastern Time (ET) on March 9 and run through noon ET on March 25. Both representatives and registrants must wait until March 9 to create and complete H-1B registrations, IT CANNOT be done before the start date and time. USCIS has committed to opening the initial registration period for a minimum of 14 calendar days each fiscal year. The H-1B selection process will then be run on properly submitted electronic registrations. Only the candidates with selected registrations will be eligible to file H-1B cap-subject petitions.

Selections will take place after the initial registration period closes, so there is no requirement to register on the day the initial registration period opens. And no matter what date in that period you choose to register, everyone will have the same opportunity based on criteria in the selection process. March 31st is the expected day when 1st batch of H1Bs selected will be announced and cases will generally have 90 days from selection to file their H1B petition, April 1st being the first date for filing.

If cases that were selected do not file H1B petitions, then those cases will be determined to have been abandoned and the numbers left over will be used in a round 2 selection. Similarly, if a petition is filed based on selection and is denied then that visa number can also be allocated for a Round 2 or Round 3 batch.  NO DUPLICATE REGISTRATIONS SHOULD BE FILED! If a duplicate registration is found to have occurred, then both will be deemed to be invalid.

USCIS intends to notify registrants and their representatives with selected registrations via their USCIS online accounts no later than March 31, 2021.

A registrant’s USCIS online account will show one of the following statuses for each registration:

  • Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
  • Selected: Selected to file an H-1B cap petition.
  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
  • Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

For any questions of concerns, please do contact an experienced immigration professional

Read More
Categories
Articles Latest News

What is in President Biden’s proposed Immigration Bill!

By Dev B. Viswanath, Esq.

As part of his commitment to tackle our immigration system, President Biden has sent a bill to Congress on day  one of his presidency.  The Proposed Bill is Titled “U.S. Citizenship Act of 2021!”  The bill is expected to stimulate the economy. The bill creates an earned path to citizenship for our immigrant neighbors, colleagues, parishioners, community leaders, friends, and loved ones—including Dreamers and the essential workers who have risked their lives to serve and protect American communities.

Some important highlights of the bill are:

PROVIDE PATHWAYS TO CITIZENSHIP & STRENGTHEN LABOR PROTECTIONS

  • Create an earned roadmap to citizenship for undocumented individuals.

The bill allows undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021.

  • Keep families together. The bill reforms the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.  Lastly, the bill allows immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.
  • Embrace diversity.  The bill also increases Diversity Visas to 80,000 from 55,000.
  • Grow our economy and boost the employment based sector. This bill clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps. The bill makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States; improves access to green cards for workers in lower-wage sectors; and eliminates other unnecessary hurdles for employment-based green cards. The bill provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the system.

PRIORITIZE SMART BORDER CONTROLS

  • Supplement existing border resources with technology and infrastructure. The legislation builds on record budget allocations for immigration       enforcement by authorizing additional funding for the Secretary of DHS to develop and implement a plan to deploy technology to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry.  To protect privacy, the DHS Inspector General is authorized to conduct oversight to ensure that employed technology effectively serves legitimate agency purposes.
  • Manage the border and protect border communities.  The bill directs the Government Accountability Office (GAO) to study the impact of DHS’s authority to waive environmental and state and federal laws to expedite the construction of barriers and roads near U.S. borders and provides for additional rescue beacons to prevent needless deaths along the border. The bill authorizes and provides funding for DHS, in coordination with the Department of Health and Human Services (HHS) and nongovernmental experts, to develop guidelines and protocols for standards of care for individuals, families, and children in CBP custody.

ADDRESS OTHER ISSUES

  • Improve the immigration courts and protect vulnerable individuals. The bill expands family case management programs, reduces immigration court backlogs, expands training for immigration judges, and improves technology for immigration courts. The bill also restores fairness and balance to our immigration system by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals.
  • Support vulnerable populations. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to  30,000.

For more information, please contact a knowledge immigration attorney or your senator or local congressperson.

Read More

Categories
Articles Latest News USA

H1B Season is in full swing – What to expect?

By Dev B. Viswanath, Esq.  

With the year 2021 under way, employers are all gearing up and organizing candidates for H1B filings for Fiscal Year 2022, which will begin October 1, 2021.  The filings for H1Bs will start around April this year and the lottery system will be based on cases selected through pre-registration, similar to last year, which will likely be allowed in March.

USCIS started the electronic registration system last year, for employers who wish to obtain H-1B visas for their prospective employees. This method was a way for the government to streamline the lottery process for H1Bs subject to the cap (both general and master’s degree cap). Based on last year’s process, it is actually quite a good system. Amazingly, something related to immigration I can compliment the outgoing Trump Administration for.

This system requires petitioning companies to submit information on the company and professionals they want to apply for in the H-1B lottery for the following fiscal year. There was a $10 fee for each employee during registration last year and we expect that the amount will be similar this year, if not the same.

Based on last year’s guidance, each employer can put up to 250 employee beneficiaries in one registration, and $10 for each of the beneficiaries. So the maximum amount to be paid in one registration would be $2500. The pre-registration period is from March 1 through March 20.  All H1Bs that are being filed under the cap for fiscal year 2022 must complete this pre-registration process and that is the only way that a petition will be picked in the lottery. Notification of the same should come by March 31, assuming sufficient numbers have been submitted through preregistration.

Prospective petitioners with selected registrations will be eligible to file an FY 2022 cap-subject petition only for the alien named in the registration and within the filing period indicated on the eligibility notice.

The electronic registration system has proved to be a very valuable process.  First, it allows employers to save a lot of money, time, and energy because until they know their potential applicant is picked in the lottery, there is no need for a full H1B petition to be prepared.  Second, once selected, an employer will have 90 days to submit the H1B petition which is ample time to prepare, organize and file. Third, because they save so much money up front, employers may be encouraged to file more H1Bs pre-registrations so that at least one candidate and possibly more get picked, and the employer can decide if multiple selections are made then how many petitions the company wants to file.  As long as the selected case is filed within 90 days, the petition is fine and will be adjudicated.  If the matter is selected and the employer does not file within 90 days, then that selected matter is cancelled and the employer will not be able to file an H1B petition for that candidate in the fiscal year. And Fourth, for any case not selected in the first round, the matter is NOT discarded, but held in abeyance. After 90 days any cases that are denied or withdrawn, or simply not acted upon, those H1B numbers will go back into the pool and a 2nd batch of selections will be made.  So, there are several bites at the “apple” and more chances to utilize the full number of H1B visas available in any given year.

For those employers who have counsel/attorneys, there will be account process for the attorney and then any account process for the employer and they are interconnected so that preregistration can take place. AND absolutely no one should have duplicate filings for the same employee and same employer for the same job.  If that occurs the entire pre registration for that beneficiary will be cancelled as moot.

For successful applicants, the system will send a confirmation saying that the pre registration is complete.  Then it will be a wait game to find out if the applicant is picked. For any employers or potential H1B applicants, if you need information or advice, please contact an experienced immigration attorney.

Read More
Categories
Latest News USA

When the petitioner dies after the petition has been approved, what to do?

Humanitarian Reinstatement

 By Michael Phulwani, Esq. and Dev B. Viswanath, Esq.

 If an individual applies for a green card through a relative who is a Lawful Permanent Resident or US Citizen, but the Petitioner passed away before the application process is complete, the individual may still receive their green card, in some circumstances. The principal beneficiary may request humanitarian reinstatement of a petition only if the petition had already been approved before the death of the petitioner. Humanitarian reinstatement is a discretionary form of relief which means the positive factors for granting the petition must be significant.

There is no form or fee required when asking for humanitarian reinstatement. The primary beneficiary must make a written request with supporting evidence to the USCIS office that had originally approved the petition. If the beneficiary had already properly filed an application for adjustment of status with USCIS then the request for reinstatement should be sent to the USCIS office that has jurisdiction over the adjustment application. The request would normally include the following documents (but this is at a minimum):

  • The name of the primary beneficiary and the deceased petitioner’s name;
  • The receipt number of the petition;
  • Death certificate of the deceased petitioner;
  • A substitute sponsor;
  • Proof of the substitute sponsor’s relationship to the beneficiary; and
  • Any evidence showing that a favorable exercise of discretion should be given to the beneficiary.

If the beneficiary was required to have Form I-864 and the petitioner dies, the beneficiary must either have a new Form I-864 from a substitute sponsor or Form I-864W, for an exemption. The substitute sponsor must meet the following requirements:

  • A U.S. citizen, national, or lawful permanent resident;
  • 18 years old or older; and
  • Be the beneficiary’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

When deciding on whether or not to grant request humanitarian reinstatement USCIS considers many factors such as:

  • If the beneficiary is elderly or in poor health;
  • How long the beneficiary had resided in the U.S.;
  • If the beneficiary has strong ties to their home country;
  • The impact of revocation on the family living in the U.S., especially on the family who are U.S. citizens or lawful permanent residents or other relatives lawfully living in the U.S.; and
  • If the beneficiary had waited an unusually long time for the case to be processed and the delay is because of the government.

If the humanitarian reinstatement request is granted USCIS will notify the beneficiary and send its decision to either the Department of State or to the USCIS officer processing the beneficiary’s adjustment case, if they are outside the U.S. If the humanitarian reinstatement request is not granted USCIS will notify the beneficiary in writing. USCIS’s decision can not be appealed and therefore if denied the beneficiary will need to find a different way of getting an immigrant visa or green card. But, it also does not preclude the beneficiary from filing for reinstatement again, if more equities are discovered or if they have new legal counsel who may have the ability to present a stronger case than previously submitted.  This is a great form of relief for people and families when they have already suffered the loss of a loved one.

Read More

Categories
Articles Latest News

USCIS has to backtrack on H1Bs after ruling

By Dev B. Viswanath, Esq.

On June 17, 2020, USCIS issued a new policy memorandum and withdrew a memo from February 2018 on “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.” USCIS also withdrew their “Neufeld” memo from January 2010 where USCIS used a strict test to determine is an “employer-employee” relationship existed, including work performed by an H-1B visa holder at an employer’s workplace. The withdrawal of the memos resulted from an agreement USCIS reached with IT Service Alliance, an information technology trade group, to overturn more than 200 H-1B denials.

The new policy memo could result in lower H-1B denial rates and fewer Requests for Evidence (RFE). Before the settlement, many employers had to deal with USCIS’s interpretation of an employer-employee relationship and short-term approvals of H-1B petitions. Under the old Neufeld memo, USCIS had the authority, in practice, to deny an H-1B petition unless an employer could hire, pay, fire, supervise, and otherwise control the work of any such employee. The word “and” conflicted with the USCIS regulation and the Department of Labor’s definition of an employer because they used the word “or” instead of “and.” Under the new policy member new USCIS adjudicators must follow the agency’s regulation: “The officer should consider whether the petitioner has established that it meets at least one of the ‘hire, pay, fire, supervise, or otherwise control the work of’ factors with respect to the beneficiary.”

When requesting additional evidence to determine if a bona fide job offers exists, “A bona fide job offer must exist at the time of filing,” The new policy memo states: “The petitioner has the burden of proof to establish that employment exists at the time of filing and it will employ the beneficiary in the specialty occupation. If the petitioner’s attestations and supporting documentation meet this standard, then the officer should not request additional evidence and should approve the petition, provided all other eligibility requirements are met by a preponderance of the evidence.”

Previously an employer of an H-1B visa holder had to produce all the contracts the employee would work on over a three-year period. Under the new USCIS policy memo states, “In support of the petition, an H-1B petitioner is not required by existing regulation to submit contracts or legal agreements between the petitioner and third parties.” In addition, H-1B approvals can now be granted for periods shorter than the time period requested by the H-1B petitioner.

The new policy memorandum passed by USCIS should help decrease H-1B denials and reduce the obstacles employers have to go through to have an H-1B petition granted.

Read More