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. 

Transitioning from a Student Visa to Work Visa

A friend of mine asked me what a foreign student studying in the US could do to stay if they have a job available or if they want to start their own business.

Student visas (F, J, M) are temporary and dependent on being enrolled in school full time. The duration of a student visa is based on the length of the academic program that the student is seeking to pursue. An extension on the student visa is not difficult to obtain however the foreigner needs to continue to be enrolled in school to maintain his status. 8 CFR 214.2(f)

For student visas there are two different categories of practical training that students can apply for that will extend their stay in the US and allow them to work in the US. Curricular Practical training is allowed during the course of study and it can be full-time or part-time. However it could affect how much post-completion practical training they are eligible for. 8 CFR 214.2(f)(10)(i)

The second type of practical training is Optional Practical Training. With Optional Practical Training a student can receive a 12-month extension to be completed within 14 months of the completion of a course of study. If the foreign student graduated with a science, technology, engineering, or math degree they can request an additional 17 months for a total of 29 months. While a foreign student is completing their Optional Practical Training they can apply for a change of status to an H-1B visa or a permanent resident card through an employment based visa. 8 CFR 214.2(f)(10)(ii)

An H-1B visa is a temporary visa that allows an immigrant to work up to three years and can be extended to six years. An H-1B visa is designated for a person in a specialty occupation and is a temporary work visa. Labor certification is not required but a labor condition application (LCA) must be filed on behalf of the worker. The employer must pay the worker’s salary and have an employer-employee relationship where they control the worker and have the ability to hire, fire, pay, supervise, and in all aspects supervise the employee. H-1B visas are capped at 65,000 each fiscal year. 8 CFR 214.2(h)

A student with the entrepreneurial spirit can start a business and work while on Optional Practical Training.  As long as the student is not unemployed for a total of 90 days then they can be self-employed. (Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook, 12^th ed. 721 (2010). However, if the entrepreneur wants to change status from OPT to H-1B they need to have a partner or investors because the foreigner cannot petition for himself. Id. at 746. In order to petition for an H-1B visa, the petitioner must be a US employer who is defined as someone who engages a person to work within the US, has employer-employee relationship in that it may hire, fire, pay, supervise, or otherwise control work. For purposes of visas for foreign workers, self-petitioning owner is not an employee.  Id.

Immigration Reform Through Executive Orders

In June, President Obama declared that he would use his authority as the executive to circumvent congress in regards to immigration.  An executive order is an order signed by the President that has the effect of law. The constitution gives the President the executive power and the power to uphold the laws that congress delegates to the executive office. When the President signs an executive order it is in relation to anything that falls within this specific jurisdiction. Because of this, the President is usually pretty careful to site which law grants him the authority to act when writing an executive order.  

President Obama said he would sign an executive order by the end of summer regarding the current US immigration system. Since Labor day (the unofficial end of summer) has come and gone, many question when he will sign executive orders that address the immigration situation in the US. Many in the media have postured that he will wait until after the November midterm elections so that immigration is not a reason that democrats in close congressional races throughout the nation lose their elections. Hispanic leaders have criticized Obama for delaying the executive orders, caving to election year politics. (Obama’s delay on immigration action brings storm of criticism from Hispanics, liberal supporters at http://www.foxnews.com/politics/2014/09/07/obama-reportedly-delay-on-immigration-reform-brings-storm-criticism-from/.)

As mentioned above the President cannot simply change the current law, he must work within the realm that congress and the constitution have delegated to him. Here are a few ideas of what the President can do through an executive order.

1.     One is to change the policy of how green cards are deducted from the caps set up by congress. About half of the 140,000 green cards that are set aside for employment immigration go to family members of the immigrant. The immigration code does not address who receives the green cards so the president could feasibly change the policy to allow all the green cards from the employment based categories to go the immigrant and not include the family in the count. (The executive action Obama should take on immigration, http://thehill.com/blogs/pundits-blog/immigration/216207-the-executive-action-obama-should-take-on-immigration.) The family could still come with the immigrant worker but they would not count towards the cap.

2.     Another consideration is the expansion of DACA to include millions more immigrants. The president cannot change the citizenship process, but he can decide who to deport. “Congress does not appropriate enough money to deport all of the more than 11 million undocumented immigrants in the country.”  (Immigration question: How far can the president go on executive actions?, http://www.cnn.com/2014/08/07/politics/obama-executive-actions/.) The president can set priorities on those who are put in removal proceedings by focusing more on deporting criminals and dangerous immigrants rather than those who, aside from their illegal immigration status, are law abiding. By allowing more people to qualify for the DACA program it frees up the system to focus on other more harmful people to the American system. 

      Do you agree with the President? What would you like to see happen in regards to executive action regarding immigration. Post your comments below.