Cancellation of Removal for Nonpermanent Residents

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Cancellation of removal for nonpermanent residents allows foreign nationals in the US who are currently in removal proceedings to remain in the US an obtain permanent residency (green card).  Removal may be canceled if the application meets the following four conditions:

1.  The applicant is currently in removal proceedings because he or she is inadmissible or deportable;

2.  The applicant has been physically and continuously present in the US for ten years;

3.  The applicant has had good moral character for that period of time;

4.  The applicant must not have been convicted of certain criminal offenses; and

5.  The applicant must demonstrate that removal would cause exceptional and extremely unusual hardship to his or her lawful permanent resident (LPR) or US citizen spouse, child or parent.

An applicant is barred from obtaining cancellation of removal if:

1.  He of she has previously been granted cancellation of removal, suspension of deportation or other relief under INA Section 212(c);

2.  He or she has persecuted others or is inadmissible under security or related grounds;

3.  He or she entered as a crewman after June 30, 1964;

4.  He or she was a J-1 visa holder for the purpose of graduate medical training; and

5.  J visa holders who are subject to INA Section 212(E) and have not completed the two year home residency requirement nor have received a J-1 visa waiver.

If the judge grants the applicant’s request for cancellation of removal, then the applicant will be able to adjust to lawful permanent resident (green card).  If the judge denies the applicant’s request for cancellation, he will enter an order of removal and the applicant will be removed from the US

Cancellation of Removal for Lawful Permanent Residents

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Cancellation of removal is a form of discretionary relief available to all lawful permanent residents (LPRs) who are in removal proceedings.  Removal may be cancelled if the application meets the following four conditions:

1.  The applicant has been an LPR for at least five years;

2.  The applicant has resided continuously in the US for seven years after having been admitted in any status;

3.  The applicant has not been convicted of an aggravated felony; and

4.  The applicant has not previously received a grant of cancellation or suspension of deportation.

Cancellation of removal is only available in immigration court before a judge.  Also, because this form of relief is discretionary, the application must demonstrate to the judge why he should exercise his discretion in favor of the applicant.

Positive factors include family ties in the US, residence of long duration in the US, evidence of hardship to the applicant and family if removal occurs, service in the US military, employment history, business and property ties, evidence of value and service to the community, proof of genuine rehabilitation if applicant has a criminal record and any other evidence of applicant’s good character.

Negative factors include the nature and underlying circumstances of the grounds of removal, the presence of additional immigration violations, the existence of a criminal record and any other evidence of bad character or undesirability.

If the judge grants the applicant’s request for cancellation of removal, then the judge is effectively forgiving the basis of the removal proceeding and the application will retain his or her permanent residency and can remain in the US.  If the judge denies the applicant’s request for cancellation, he will enter an order of removal and the applicant will be removed from the US and will lose his or her LPR status.

Green Card Options for PhD Holders

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In virtually all types of green card application, the foreign national seeking permanent residence must have a sponsor.  Typically the sponsor is the applicant’s employer or there is some type of familial relationship.  For certain PhD holders, or even PhD students, the foreign national can act as both the sponsor and the applicant.

The two paths to permanent residence that allow self-sponsorship are the EB-1 Alien of Extraordinary Ability category and the EB-2 National Interest Waiver (NIW) category.  While both categories have stringent requirements, the Eb-1 category is much more restrictive and requires the applicant to prove that he or she is one of the top individuals in his or her area of expertise.  Currently, there is no benefit to having an EB-1 application approved over an NIW application except for nationals of PR China and India.  Unless bragging rights are important, most applicants would be better off applying through the NIW category because approvals are easier.

There are three keys to a successful EB-1 or NIW application.

1.  Strong credentials.  In our experience, a successful EB-1 applicant should have a PhD, 10+ journal publications, 40+ journal citations, 5+ conference proceedings and previous service for a journal reviewing manuscripts or membership in highly regarded professional organizations.  These are not absolute minimums as we have obtained EB-1 approvals for clients with significantly weaker credentials but this should serve as a guide for potential applicants.  In contrast to the EB-1 requirements, an NIW applicant need only a PhD with 3+ journal publications and 5+ journal citations.

2.  Strong Recommendation Letters.  Both EB-1 and NIW applicants should obtain at least 4 recommendation letters from various sources.  These letters must be worded correctly or the USCIS officer reviewing the application will use the letters against the applicant to deny the case.

3.  Persuasive Cover Letter.  It is absolutely imperative to guide the USCIS officer through the application to educate them on the applicant’s accomplishments and why those accomplishments are superior to others.  The cover letter must cite the applicable statutes as well as federal court cases to explain why the applicant meets the legal burden of proof.  The burden of proof rests with the applicant and he or she must demonstrate eligibility for the category.

It normally takes about 12-18 months to get a decision on the EB-1 or NIW application.  If the applicant fails to demonstrate eligibility and the case is denied, it can be appealed.  Appeals generally take 12 months and most denials are sustained.  The applicant may also choose to refile but in each application, the applicant must disclose previous filings.  Without substantial new accomplishments, the case is likely to be denied again.  Therefore, it is vital to present the best possible case to USCIS in the first application.

J-1 Visa Waiver No Objection Statement (NORI): India

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Foreign nationals who enter the US in J-1 visa status or change their status in the US to J-1 may be subject to INA Section 212(E).  Persons subject to 212(E) are required to return to their home country for an aggregate period of two years or obtain a J-1 visa waiver to waive this requirement before they may change their status in the US, obtain H-1B Visa, L-1 visa or permanent residency.

There are four avenues for obtaining a J-1 visa waiver but generally, the easiest way is to request a statement from the foreign national’s home country stating that there is no objection against the foreign national to remaining in the US without returning home for two years.  While this is widely considered the easiest way to obtaining a waiver, it is in no way a sure thing.  There are several US and foreign agencies that must support the applicant before the no objection letter is issued and the waiver is approved.

For Indian nationals, it’s necessary for the applicant to obtain clearance from the authorities concerned in India, namely

1.  The State Government (Department of Home);

2. Department of Education, Ministry of Human Resources Development, Shastri Bhavan, New Delhi OR Ministry of Health & Planning, Government of India, New Delhi. (For medical professionals only); and

3. The concerned passport office from which the application obtained passport to come abroad.

In some cases, a request for clearance from each agency is sufficient.  In others, a persuasive statement must be submitted before the agency will approve the request.  After issuance of the NORI, the applicant must petition the U.S. Department of State (DOS) for issuance of the J1 waiver.

K-1 Fiancé(e) Visa: IMBRA Limitations and Waivers

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The International Marriage Broker Regulation Act of 2005 (IMBRA) created harsh reporting requirements for US persons who seek to meet foreign nationals through dating services.  IMBRA requires that potential US petitioners disclose certain criminal and marital history to matchmaking service companies before the companies may assist them in finding foreign natioanls interest in American suitors.   If the US petitioner does not disclose this information to the matchmaking company, he or she must still do so on the fiancé(e) visa application form (Form I-129f).  Additionally, when the foreign fiancé(e) applies for the visa at the US Consulate, the Consular officer will ask if the couple met through a matchmaking or dating service and where he or she was made aware of the US petitioner’s criminal and marital history.  Failure to disclose will result is a denial of the fiancé(e) visa and can also lead to civil and criminal penalties of up to $25,000 per violation and 5 years in prison.

US petitioners must disclose:

1.  Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.

2.  Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes.

3.  Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.

IMBRA also mandates certain filing limitations be US petitioners.  If the US petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the US petitioner cannot obtain an approved Form I-129f without obtaining a waiver of these limitations.   These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3 visa).

In order to obtain an IMBRA waiver, the US petitioner must demonstrate why a waiver would be appropriate along with evidence in support of the waiver.  If the US petitioner has committed a violent offense, a waiver may also be obtained if extraordinary circumstances exist which show that the US petitioner was acting in self defense or that he or she was not the primary perpetrator of violence in the relationship or that there was no serious bodily injury in the offense committed.

IMBRA also requires USCIS to maintain a database to track K-1 visa and K-3 visa applications.  If a US petitioner applied for a second or subsequent K-1 visa or K-3 visa, the USCIS will notify the US petitioner and foreign beneficiary of the number of previously approved petitions listed in the database. USCIS will also send the beneficiary a pamphlet containing information on legal rights and resources for immigrant victims of domestic violence.

Since enacted, IMBRA has created a burden on US petitioners as well as international matchmaking service companies.  It has also led to many denials of K-1 visa and K-3 visa applications.  It is not uncommon, especially for unrepresented applicants, for Form I-129f cases to be approved by USCIS but later denied at the US Consulate for minor, unintentional errors.  Because IMRA imposes filing limitations where a Form I-129f was approved within the last two years, the US petitioner cannot simply reapply if the first application was denied at the US Consulate.

Marriage Green Card: Marriage Fraud Interview

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In order to obtain immigration benefits available to a spouse, there must be a valid marriage between the parties. In most situations, a marriage is valid for immigration purpose if it is recognized by the law of the state where it occurs. However, a marriage that is legally valid may still be disregarded if it is found to be a sham marriage, entered into by the parties to obtain immigration benefits and without any intention to live together as husband and wife.

The burden is on the applicant to demonstrate the bona fides of the marriage.  During the marriage green card process, the USCIS will interview both the husband and the wife.  In some cases, exceptions can be made and no interview takes place.  However, this is extremely rare.  If the USCIS has reason to suspect that the marriage is a sham marriage, then they will conduct a special fraud interview.  This will include separation of the parties and conducting a question and answer session under oath.  If the interviewing officer believes the marriage is a sham, the USCIS may

1) Deny the application and subsequent applications pursuant to INA 204(c);

2) Institute removal proceedings;

3) Refer for visa fraud prosecution pursuant to 18 USC Section 1546;

4) Refer to perjury prosecution pursuant to 18 USC Section 1001;

5) Refer for conspiracy prosecution pursuant to 18 USC Section 371; and

6) Refer for marriage fraud prosecution pursuant to INA Section 275(c).

Prior to the interview, the USCIS will conduct an investigation of the parties.  Specifically, they will run a criminal background check, a credit check and will search the internet for any postings the parties may have made.  This includes popular social sites like Myspace and Facebook.  The USCIS will be looking for any evidence that the parties do not intend to live as husband and wife.  When questioned at the interview, any inconsistent statements may be used as a basis to deny the application.

The focus of the interview will be to determine if the parties intend to establish a married life together.  The parties will be asked to present evidence that they have been living as a married couple.  This is normally shown by producing evidence of insurance policies, property, leases, income tax statement and bank accounts that are jointly held.  Photos and birth certificates of children born to the parties are helpful as well.

There are many factors the USCIS will look at to determine the existence of a sham marriage.  A sham marriage is a marriage that was fraudulent at its inception.  A marriage is not a sham or fraudulent marriage if the couple intended to live as husband and wife but later grew apart.

Because USCIS may use any inconsitency against the applicant to deny the green card application, it is vitally important for the parties to be properly represented and prepared.

J-1 Visa Waiver No Objection Statement: P.R. China

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Foreign nationals who enter the US in J-1 visa status or change their status in the US to J-1 may be subject to INA Section 212(E).  Persons subject to 212(E) are required to return to their home country for an aggregate period of two years or obtain a J-1 visa waiver to waive this requirement before they may change their status in the US, obtain H-1B Visa, L-1 visa or permanent residency.

There are four avenues for obtaining a J-1 visa waiver but generally, the easiest way is to request a statement from the foreign national’s home country stating that there is no objection against the foreign national to remaining in the US without returning home for two years.  While this is widely considered the easiest way to obtaining a waiver, it is in no way a sure thing.  There are several US and foreign agencies that must support the applicant before the no objection letter is issued and the waiver is approved.

For Chinese nationals, there are seven main requirements, though exact requirements may differ from case to case to obtain the No Objection Statement (NOS).

1.  The NOS applicant must be a Chinese citizen holding a personal passport;

2.  The NOS applicant must have received private or government funding;

3.  The NOS applicant must have been present in the US for one year at the time of application;

4.  The NOS applicant must be at least six months from completing the J1 program;

5.  The NOS applicant must have registered with the Chinese Education Deparment;

6.  The NOS applicant must have settled with the J1 program sponsor regarding housing and financial issues; and

7.  The NOS applicant must provide a valid reason why the NOS should be granted.

Exceptions can be made in certain circumstances.

After issuance of the NOS, the applicant must petition the U.S. Department of State (DOS) for issuance of the J1 waiver.

Recent Challenges with the PERM Labor Certification Process

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Recent layoffs have made obtaining PERM certification much more challenging than in the past. If there is a layoff in the area of intended employment, PERM regulations require that the employer notify and consider all potentially qualified laid off workers in the occupation or related occupation. 20 C.F.R. § 656.17(k)(1). Moreover, the employer must disclose the layoffs to the Department of Labor when filing the PERM application.

If, during the recruitment phase of the PERM process, just one minimally qualified US worker applies for the open position and cannot be disqualified, the PERM will fail, assuming there is only one opening. Therefore it is imperative to plan ahead and determine exactly which laid off workers must be notified.

On January 29, 2009 the Department of Labor (DOL) provided an update on PERM approval rates and audits. Since the start of the PERM program in 2005, 224,000 PERM applications have been filed and 68,674 of those applications were either withdrawn or denied. This is an overall approval rate of 69%. Additionally, the DOL noted that 26% of currently processed cases were being audited.

Obama’s Stimulus Plan and Its Effect on H-1B Visa Applications

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On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 containing the Sanders H-1B amendment.  The Sander H-1B amendment prohibits the sponsoring of H-1B visas by organizations that received funding of through the Emergency Economic Stimulus Act of 2008 (TARP money) unless the organization complies with the requirements of H-1B dependent employers for the next two years.

H-1B dependent employers are defined as employers with:

1.  25 or fewer full time equivalent employees in the US and employ more than seven H-1B visa holders; or

2.  26-50 full time equivalent employees in the US and employ more than 12 H-1B visa holders; or

3.  have more than 50 full time equivalent employees in the US and employ at least 15% of their workforce with H-1B visa holders.

H-1B dependent employers must make certain attestations with regard to US worker displacement, recruitment and hiring. The American Immigration Lawyers Assication (AILA) recently posted a press release stating that these attestation requirements “saddles TARP fund recipients with strict regulations for hiring foreign workers under the H-1B program that are so cumbersome as to amount to an out-and-out prohibition.”

Notwithstanding AILA’s position, this is actually good news for many prospecitve H-1B visa applicants who intend to file this April 2009 for FY2010.  Last April, USCIS was overwhelmed with H-1B applications and the 65,000 H-1B Visa Cap was met in the very first week and tens of thousands of applications were rejected through a lottery system.  If the Sanders amendment precents the large financial firms from applying as AILA as predicted, there will be many more available H-1B visas for applicants from smaller US companies.

H-1B Visa Transfers

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Many H-1B visa holders are under the impression that there is a “grace period” following the conclusion of their stay in H-1B visa status. Most believe that if they are laid off, fired or otherwise terminated that they have 30, 60 or even 90 days to find a new H-1B sponsor or just to gather their things and leave the country. This is not the case.

If the H-1B visa status terminates because the I-94 expires and there is no application for extension or transfer, then the H-1B visa holder has a grace period of 10 days, if and only if an extra 10 days is granted by US Customs and Border Protection (CBP) when the H-1B visa holder enters the United States.

If the H-1B visa holder is fired or terminated then he or she is out of status immediately. In fact, the petitioning employer is required to notify USCIS of the date of termination. If the H-1B holder is not employed by the petitioning employer and has not filed an application to transfer the H-1B visa to another company then he or she is out of status and may be accruing unlawful presence. Matter of Lee, 11 I. & N. Dec. 601 (Reg. Comm. 1966). However, USCIS has some discretion pursuant to 8 CFR 214.1(c)(4) and may allow an application for H-1B visa transfer if filed within 30 days of termination.

H-1B visa transfers are governed by INA § 214(n) and allows an H-1B visa holder to “port” to a new employer if these four requirements are met:

    1. The foreign national was lawfully admitted

    2. the new petition is “nonfrivolous”

    3. the new petition was filed before the date of expiration of period of authorized stay

    4. subsequent to lawful admission, the foreign national has not been employed without authorization

“Port” or H-1B portability means that a H-1B holder may work for a new H-1B petitioner upon the filing of an application to transfer to the new employer so long as the four requirements are met. The H-1B holder may attempt to port, even 30 days after their previous H-1B employment was terminated relying on 8 CFR 214.1(c)(4), and work for the new H-1B visa employer upon filing the application. In this case the H-1B visa holder would be legally authorized to work for the new petitioning employer at least until the application is adjudicated. Should the transfer application be denied, the alien would be required to depart the US. If the application is successful, he or she may continue to work for the new employer for the duration of the new authorized stay as shown on the new I-94.