Deferred Action for Childhood Arrivals; old and new qualifications.

In 2012, President Obama announced a program that allowed immigrants who were brought to the states as children to qualify for deferred action. Deferred action is use of prosecutorial discretion to defer removal proceedings against an individual for a certain period of time. Those who qualify for deferred action for childhood arrivals (DACA) were brought to the United States before their 16^th birthday.  Although DACA recipients still do not technically have legal status in the US, they effectively have a legal status in the US because they are allowed to stay in a legitimate capacity. DACA recipients can obtain a work permit, get a driver’s license (in many states), and get a US social security number, among many other benefits.

DACA is an important program that allows immigrants who came to the US as children with their parents an opportunity to work in the US. When parents immigrate, these children had no choice whether they came to the US or not and it seems harsh to punish people for coming to the US when they had no choice in the matter. Their parents do not gain a legal status or a work permit through the DACA program.

Many immigrants have taken advantage of DACA and benefitted from the opportunity to work and feel safe from Immigration and Customs Enforcement. In the first year DACA was implemented over 500,000 people took advantage of the opportunity to gain a work permit. Work permits were valid for two years. Because of the success of DACA, President Obama extended the benefits of DACA in his executive action announced November 20, 2014.

So who qualifies for DACA? The following is a list of the 2012 guidelines with the 2014 change at the end.

2012 Guidelines:

·       Age guidelines – at least 15 and under 31 as of June 15, 2012.

·       Timeframe – Continuous residence in the US since June 15, 2007, come to the US before your 16^th birthday, were physically present in the US as of June 15, 2012 and at the time of requesting DACA, and are in school, have graduated from high school in the US, or have a GED.

·       Education or military status at the time of requesting DACA – graduated from high school, secondary school, or obtained a GED. Currently enrolled in school (high school or equivalent, not college – presumably if you’re in college, you have your high school degree). Have been honorably discharged from the US military or Coast Guard.

New 2014 guidelines

·       Age guidelines – are of any age

·       Timeframe – have lived in the US continuously since at least January 1, 2010.

·       Education – same requirements

·       Extends the validity of work permits from two to three years

The new guidelines take effect February 18, 2015. If you have any questions please contact Frost Law.

Specialty Occupation for an H-1B visa.

An H-1B visa is available to aliens who are coming to the US to work in a specialty occupation. There are two sets of requirements to consider when looking to hire a foreign worker for a US position. The first set is the requirements for the job to qualify for an H-1B visa holder to occupy. The second set is the qualifications for the foreign worker to possess before he can obtain an H-1B visa.

To qualify for an H-1B visa, the job must meet several requirements categorizing it as a specialty occupation:

(1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;

(2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

(3) the employer normally requires a degree or its equivalent for the position; or

(4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. See 8 CFR 214.2(h)(4)(iii)(A).

In order to perform services in a specialty occupation, an alien must meet one of the following

criteria:

(1) hold a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited college or university;

(2) possess a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited college or university;

(3) have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or

(4) have education, specialized training, or progressively responsible experience (or a combination thereof) that is equivalent to completion of a U.S. bachelor’s degree or higher in the specialty occupation, and have recognition of expertise through progressively responsible positions directly related to the specialty occupation. See 8 CFR 214.2(h)(4)(iii)(C).

The code is vague on what types of jobs qualify  as specialty occupations; “specialty occupations may include, but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants.” See 8 CFR 214.2(h)(4)(ii). For example computer systems analysts could encompass computer programmers, program analysts, software designers, software engineers, etc. Many occupations outside of the short list have been approved such as:

·       Auditors

·       Architects

·       Biologists

·       Budget and Management Analysts

·       Chemists

·       Civil Engineers

·       College and University Educators

·       Database Administrators

·       Data Communication and Network Administrators

·       Economists

·       Electrical and Electronic Engineers

·       Financial Analysts

·       Graphic Designers and Artists

·       Industrial Engineers

·       Mechanical Engineers

·       Surgeons

·       Sales and Distribution Managers

·       Statisticians

·       Surveyors

·       Teachers, Primary and Secondary Schools

·       Therapists

Although a job has been approved in the past, it may not be approved in the future. However, jobs that fit in these categories have a higher likelihood of being approved H-1B jobs.

H1B Worker Visa Procedures

It is a new year and with the changing of the calendar comes the time for companies to contemplate hiring foreign talent as the filing deadline for H-1B worker visas is April 1. In the realm of H-1B worker visas there are many items one should consider when applying for the visa. The following is just a few of the preliminary items that one should consider when contemplating filing for an H-1B visa.

First is to be aware of the time frame that USCIS uses when filling H-1B visas. The fiscal year starts October 1 in any given year and a petition can be filed up to six months in advance on April 1. The cap fills up quickly; for the 2015 fiscal year, petitions were filed beginning April 1, 2014 and the filing period closed 5 days later. Normally if you want to hire a nonimmigrant foreign worker, the start date will be set as October 1 and a petition will be filed on April 1. Having filed at this time does not guarantee that your petition will be approved for the fiscal year that you have filed for. More applications are filed than there are visas in the H-1B cap. Those that file within the filing period will be entered into a lottery and the USCIS will select 65,000 applicants at random. Those that do not get selected will receive a refund of their processing fees.

Applicants with a master’s degree are subject to an exception. 20,000 visas are set aside for H-1B applicants with a master’s degree. Those who are not selected for the master’s exception will be included in the H-1B cap lottery. That is a total of 85,000 H-1B applicants in the fiscal year.

Second, you need to file a Labor Condition Application. A Labor Condition Application also asks for a prevailing wage determination and the wage that will be paid to the applicant. The employer attests that: H-1B nonimmigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience, the employment of H-1B will not adversely affect the working conditions of workers similarly employed in the area of intended employment, here is not a strike or lockout in the occupation in which the H1b nonimmigrant will employed, and a copy of this application will be given the H-1B nonimmigrant and the workers already in the field. The Labor Condition Application is filed before the H-1B is filed so that you can attach the Labor Condition Application to the H-1B application.  A Labor Condition Application is usually filed in early March before the April 1 deadline for the H-1B applications. 

Spousal Visas

If a US citizen marries a non-citizen, the non-citizen is immediately eligible for an immigrant visa as an immediate relative of the US citizen. If the spouse is still in another country there is a few paths that you can follow to obtain permanent resident status for your spouse. The US has three visas you and your spouse can apply for while your alien spouse is still abroad.

The first is a K-3 visa. A K-3 visa is a nonimmigrant visa that allows an alien spouse to travel to the US and live in the US while a petition is being considered. It allows for family unity while USCIS is considering an I-130 petition and processing the rest of the paperwork for a green card. An alien spouse will need to adjust status once they get to the US. However over time, the processing time has become quicker for I-130 petitions and a K-3 visa won’t always be approved before an I-130 and once an I-130 petition is approved an alien spouse abroad needs to obtain a CR1 or IR1 visa (or regular consular processing abroad).

A CR1 visa is an immigrant visa and an alien does not need to further adjust status once they come to the US. A CR1 visa grants conditional resident status and allows the immigrant to travel to the US to obtain their green card. If the couple has been married for longer than 2 years then they can apply for a IR1 visa and get permanent resident status without conditions.

In all cases, an I-130 petition needs to be filed for the alien spouse. A petition for a K-3 visa may be filed at the same time and there is no filing fee for the K-3 visa. An I-130 petition must be approved before you can apply for an immigrant visa. Which is the advantage of applying for a K-3 when you file your I-130, because they are simultaneously considered and if the K-3 visa is approved before the I-130 is then the alien can travel to the United States. The CR1 and IR1 (DS-260) is processed at the US embassy abroad where the alien will wait for their visa. 

Asylum: what is a particular social group?

Many factors must be present in order for a refugee to be given asylum in the United States.

The US allows refugees who have been persecuted in their home country to gain a legal status in the US which could lead to a green card and citizenship. Asylum seekers must meet the definition of refugee outlined in the Immigration and Nationality Act (INA) in order to qualify for asylum. A refugee is someone who is outside their country of origin who is unwilling or unable to return because of persecution or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 

This post will focus on what ‘particular social group’ means in the legal sense. The code does not define what a particular social group is or what kind of groups are protected by the statute and allowed refugee status in the United States. A particular social group means a group of people who share some characteristics that distinguishes them from society as a whole.[1] So what qualifies as a particular social group? I will attempt to provide further guidance, however, as with all immigration matters, the judge has wide discretion in determining what does and does not qualify as a particular social group and cases will be looked at individually and determined on a case-by-case basis. The INA does not give a specific definition because it will change over time; what qualifies as a particular social group today might not in one year from now as regional matters and threats arise and fade out. The Board of Immigration Appeals stated in Matter of Acosta that characteristics as innate as “sex, color, or kinship ties” may qualify as a particular social group for purposes of refugee status and asylum but will be reviewed on a case by case basis.[2] The standard for a particular social group also includes an “individual who is a member of a group of persons, all of whom share a common, immutable characteristic, i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.[3]” The 9^th circuit, which sets the governing precedent in Arizona, as well as California, Oregon, Washington, Nevada, Alaska, Idaho, Montana and Hawaii, decided in Sanchez-Trujillo v. INS that a particular social group needed to be a cohesive, homogenous group, which contrasts with the BIA decision.[4] In an effort to reconcile the precedents, recent 9^th circuit cases have added to the Sanchez-Trujillo precedent and included innate characteristics such as sex, color, and sexual orientation as characteristics that would qualify as a particular social group even though these groups may not be cohesive or homogenous.[5] The 9^th circuit has the two part test because they did not want groups that were too broad to be recognized as a particular social group.[6]

The definition is constantly evolving as new categories arise and new threats to human rights arise. If you want to apply for asylum, call an attorney who will assist you as you apply for asylum.

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[1]T. Alexander Aleinikoff, “Membership in a Particular Social Group”: Analysis and Proposed Conclusions,  p. 6, 2001 (draft), http://www.unhcr.org/3b83b1c54.pdf.

[2] Matter of Acosta, 19 I&N Dec. 211, 234 (I&N, 1985).

[3] Id. at 212.

[4] Sanchez-Trujillo v. INS, 801 F. 2d 1571 (C.A. 9. 1986).

[5] Perdomo v. Holder, 611 F. 3d 662, (9th Cir. 2010).

[6] Id.

E-2 treaty visas

I recently blogged about investor visas, which is a path to citizenship and requires a large investment. What if you don’t want to permanently move to the United States or don’t have a large sum of money to invest? The United States has a nonimmigrant investor visa that allows foreigners to invest in smaller businesses and allows them to stay in the United States as a nonimmigrant. The US has negotiated treaties with several countries that allow a citizen of the treaty country to invest in businesses in the US and bring their family to live and work in the US.

So how does a E-2 treaty visa work? The alien must place “capitol, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. Your investment may be for the purpose of establishing a new business venture, or purchasing a pre-existing business. In either scenario, you must demonstrate that the capital you are investing is substantial.[1]” What a sterile definition.  Let me break it down into a few simple rules listed in the definition. 

1.     The business: The alien must invest capitol in a commercial business. The business cannot be marginal; meaning that it cannot merely make a minimal living for the alien and their family, it must produce a profit. An alien can demonstrate that by producing a detailed business plan, payroll summaries (W-2s, etc.), financial statements, and tax returns. The business must also be a bona fide venture. Meaning it cannot be some cover to launder money, sorry to all the would be felons who were hoping to get around the immigration laws. To be a bona fide venture “is a real, active commercial, or entrepreneurial undertaking which produces services or goods for profit.[2]” A bona fide venture may not be an idle investment in land or stocks which the investor does not intend to direct.

2.     Capitol: The investor must be in possession of the funds to be used in the investment. The investor must also prove that he has committed those funds to the development of the enterprise. The amount of the investment is not specifically defined in the statute, but it does need to be substantial in relation to the total amount spent in acquiring the business or building a new one. One can prove that the investment was substantial by providing the bill of sale, valuation of the business assets, purchase agreement for business assets, etc.

3.     Funding: the funding for the investment must come from a legitimate source. A paper trail of the funds must be provided when applying for the visa. An alien must demonstrate that all sources are not gained by criminal or illegal means.

4.     Develop and Direct: The last requirement is that the alien intends to come to the US to develop and direct the company that the alien intends to invest in. Why else would one be applying for a visa if they do not intend to be in the US to develop and direct the company that he invests in?

There you have it. Four steps to gaining a nonimmigrant investor visa without investing $1 million dollars. If you have other questions about an E-2 visa or other type of employment based visa, please contact me or leave a comment.

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[1] http://www.uscis.gov/eir/visa-guide/e-2-treaty-investor/understanding-e-2-requirements

[2] http://www.uscis.gov/eir/visa-guide/e-2-treaty-investor/understanding-e-2-requirements 

Investor Visas

Listing off the requirements of obtaining an EB-5 visa is fairly easy. The immigrant must invest capital of $1,000,000 (or in certain areas $500,000); create 10 full time jobs through their investment; and create a new commercial enterprise where they have a managerial role in the business. Seems simple enough right, have the money and the idea and hey the US will let you have a green card? Each criteria has several little requirements that make it a bit tougher to obtain a green card.

The first criteria is pretty simple. Got a million bucks? Good you can invest where ever you want. However, the USCIS allows for a lesser investment of $500,000 in targeted employment areas or rural areas. A targeted employment area (TEA) is an area that is experiencing unemployment of at least 150 percent of the national unemployment average.  As investors choose where to invest their money they have to be aware of where possible TEAs are because a TEA can be in the middle of the city or on the outskirts of a city or out in the rural country. Most states have an agency that keeps track of the TEAs and you can ask if a certain plot of land is within a TEA.

The investment can be in the form of assets that total the amount needed ($1 million or $500,000 depending where the entrepreneur wants to build his investment).  All assets will be valued according to the fair market value in United States dollars.  All funding must come from legal sources, if any of the funding for the investment came by unlawful means it will not be counted toward the amount for the investment.  Money obtained from a bank robbery will not help you get a green card in the US.  All money used for EB-5 purposes needs to have a paper trail of where it came from in order to prove its legitimacy.

The second criteria needed for an EB-5 visa is the enterprise must create or preserve 10 full-time jobs.  The jobs created or preserved are to be filled by a qualified employee which is someone who is a US citizen, legal permanent resident, or foreigner on a work visa; anyone who is authorized to work in the US is a qualified employee.  If the investor is saving a troubled business they can count the preserved jobs towards the job creation requirement, however if the enterprise has more than ten jobs then all the jobs need to be saved in order to qualify for the investor visa.  A troubled business is one that has been existence for at least two years and has suffered a net loss for the last 12 to 24 months.  

The third criteria that investors need in order to gain an EB-5 visa is to create a new commercial enterprise.  “Commercial enterprise” means any for-profit activity formed for the ongoing conduct of lawful business.  “New” means after November 29, 1990.  An investor can also save a troubled business that was created before November 29, 1990 as long as it is restructured in a way that creates a new commercial enterprise or that it is expanded so that there is a 40 percent increase in net worth.  A commercial enterprise can be in the form of a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other business entity privately or publicly held.  As an investor, the alien must have a managerial role in the company and have some control over the investment.  The commercial enterprise cannot be a passive investment for the purposes of an EB-5 visa.  (More information can be found at: http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor.)

There you have it, the three steps to getting a green card through investment. If you have any questions about the process please contact me directly.