Category: Lawful permanent resident


Applicants Under Age 14 or Over Age 79 Do Not Need to Appear for Biometrics for Reentry Permit (or Refugee Travel Document)

October 19th, 2012 — 5:43pm

When a lawful permanent resident plans to depart the U.S. temporarily and does not expect to return to the United States for a year, often he or she is advised to obtain (before departing the U.S.) a Reentry Permit. A Reentry Permit is a travel document that helps to protect an individual from inadvertently abandoning permanent resident status. To obtain the Reentry Permit travel document, the individual must apply while in the U.S. and obtain biometrics (fingerprints and a digital photograph) prior to departing the U.S. Once the biometrics have been taken, the individual can leave the U.S. and the travel document can be mailed to him or her abroad.  The rules regarding fingerprints and photographs have been confusing for those under age 14 or over 79 because these individuals are not required to pay a biometrics fee or have their fingerprints taken. They are, however, being notified by USCIS that they are to appear at application support centers for biometrics. Just recently, however, USCIS has advised that such individuals are not required to attend a biometrics appointment. Instead, applicants under the age of 14 or over 79 can submit two passport-style photographs when applying for the Reentry Permit (in addition to all other required documentation), and USCIS will issue the travel document without requiring the applicant to attend an appointment.

Comment » | Department of Homeland Security, Lawful permanent resident

Why Do Visa Numbers Surge Forward and Then Retrogress? Predicting Visa Availability for Backlogged Categories?

August 28th, 2012 — 3:52pm

Predicting when a priority date will become current and when the wait on the long immigrant visa queue will finally be over can often be pure guess work. With visas suddenly unavailable or unexpectedly within reach, preference-visa applicants and their attorneys have learned to accept this phenomenon as just another part of the immigration system. In a recent interview with the head of the Visa Control and Reporting Division at the State Department’s Visa Office – the office charged with establishing the monthly priority dates for the Visa Bulletin – Charles Oppenheim sheds some light on the process and provides his predictions for the months to come.

In October 2012, when new visas are allocated for fiscal year 2013, the employment-based second category (EB-2) worldwide will become current but, Mr. Oppenheim warns, the EB-2 category may retrogress or become unavailable for the rest of the year if USCIS adjudicates a significant number of cases in the summer. EB-2 cut-off dates for China (Mainland born) and India, currently “unavailable,” will only move to August or September 2007 and are not likely to move forward for at least six months due to pent-up demand.  Many of these individuals were just two years away from obtaining their green cards in April 2012 when the priority date was May 1, 2010. Now, these foreign nationals can expect at least a five-year wait. Why did this happen?  Why do priority dates move so far ahead and then retrogress so drastically?

Apparently, USCIS had approved many I-140 employment-based immigrant visa petitions but had not received a corresponding number of I-485 adjustment of status applications to adjudicate and thus urged DOS to move these priority dates forward.  Moreover, USCIS expected that adjudication of EB-1 cases would be at the same rate as last fiscal year, and not more. All of these factors led to the forward movement of the EB-2 priority date. The dates then severely retrogressed when demand caught up with visa availability. Another factor for seesawing EB-2 priority dates was the increase in EB-5 investor immigrant visa cases. Unused EB-5 visas trickle down into the EB-1 category, and unused EB-1 visas fall into EB-2. This year, there was less of the normal trickle-down between categories.

Another issue that clouds prediction of visa demand and visa availability, as explained by Mr. Oppenheim, is that neither USCIS nor DOS maintains statistics on upgrades from the EB-3 category to the EB-2 preference category. This can occur, for example, when an applicant applies for an EB-3 visa petition but then advances in his or her career or changes jobs and becomes eligible for an EB-2 visa or marries an EB-2 applicant. In these instances, the individual then has two visa numbers allocated to him. The unused or duplicate visa number (EB-3) is only cancelled when the visa applicant uses the EB-2 visa number during green card issuance. According to Mr. Oppenheim, there are between 10,000 and 15,000 duplicate visas numbers as a result of “upgrades” each fiscal year – a wide variance.  For 2013, that number is already at 17,000, which underscores the difficulty in predicting upgrades and thus visa availability.

Retrogressions are not good for anyone and neither agency likes them.  For USCIS, it means it has to adjudicate more work authorization and travel documents without a fee, and for DOS, it means lack of predictability. For individuals, it means further uncertainty and futures delayed.

Comment » | Department of State, I-485, Lawful permanent resident

Immigration and Congress

December 19th, 2011 — 11:20am

Fairness for High-Skilled Immigration Act

Ironically, of the three branches of government, the one specifically charged with enacting laws has been just about silent on the immigration front. The 112th Congress has neither passed nor significantly moved forward any important immigration proposal this year except, most recently, the now-stalled Fairness for High-Skilled Immigration Act, HR 3012. On November 29, the House of Representatives passed HR 3012, the first significant piece of immigration legislation passed by either the House or Senate all year. Passed with overwhelming bi-partisan support, the Fairness for High-Skilled Immigration Act eliminates entirely by fiscal year 2015 the current per-country cap on the employment-based visas and is designed to eliminate long wait times for workers from high-demand countries such as India and China. It also increases the family-based per-country cap from 7 percent to 15 percent. Before the bill can become law, the Senate must take up the legislation and President Obama would have to sign it into law. Meanwhile, Senator Grassley (R-IA), a long-time, staunch opponent of pro-immigration reform, placed a “hold” on the legislation in order to delay its consideration, citing his concerns about the impact of the bill on future immigration flows, among other things.  It is unclear how long he intends to hold the legislation hostage. In any event, some are hedging their support for the bill by noting that backlogs will not be truly eliminated but instead merely passes the buck down the line, inevitably creating backlogs somewhere else in the immigration visa quota system. The bill does not make any change in the overall number of green card visas available each year for skilled and professional workers and their dependents – 140,000 – a number enacted into law more than 20 years ago.

Tinkering at the margins, congressional committees recently have conducted a number of recent hearings on important immigration issues.  A round up includes the following:

Secure Communities

A House of Representatives hearing led by Representative Steve King (R-IA) was the first-ever congressional review of Secure Communities, the three-year-old program where the FBI shares the fingerprint data of arrestees from local (and state) law enforcement agencies with DHS. For several years now the program has been criticized for leading to racial profiling and interfering with community policing. Despite these claims, the Administration has directed ICE to expand the program, and an ICE official testified at the congressional hearing that DHS has safeguards in place to alert them of possible abuse. It is doubtful that any substantive changes will come from the hearing.

Visa Waiver Program

The Visa Waiver Program (VWP) is also subject of scrutiny as many call for its expansion. The program allows nationals from 36 countries to visit the United States for 90 days or less without securing a visa in advance. Many, especially the tourism industry, advocate for expanding opportunities to other nationals as good for the American economy, citing the VWP as the single largest program of inbound U.S. travel in 2010. It is unclear from the hearings whether any substantive changes will be made, though some countries, including Taiwan, are hopeful to be included if the program expands. The House hearing follows a recent State Department announcement that the U.S. is falling far short of meeting a growing worldwide demand for visas, undermining U.S. competitiveness now and into the future.

EB-5 Investor Program

The EB-5 Entrepreneur Investor Visa Program is up for review. Created in early 1990s and lauded as a job creator and a vehicle to drive the economy, the program has been perennially underutilized, issuing fewer than 2,500 visas in 2010 out of a possible 10,000. A Senate reauthorization hearing on December 7 was to review the Regional Center program, a component of the EB-5 program that permits a $500,000 investment in targeted employment areas in approved pooled investment programs instead of a $1 million, and is set to sunset in 2012.  Most observers agree that the program will be reauthorized, perhaps permanently.

Foreign Students Educated in STEM Fields

Continuing the emphasis on economic competitiveness, hearings also have been held to examine options for reforms that do a better job of retaining foreign students who graduate in the fields of science, technology, engineering and math (STEM). Currently, foreign students must leave the United States upon graduation unless they are eligible for one of the few and limited ways to stay in the country. Many politicians are upset that we provide stellar education but don’t reap the benefits. On the presidential trail, hopefuls have also stepped up the rhetoric: Newt Gingrich said during the CNN debate in November that foreign students graduating with STEM degrees should automatically receive work visas.

Combined with the approaching 2012 election cycle and candidates staking out positions, we can expect continued hearings on Capitol Hill on immigration but no comprehensive reform, even though a new nationwide poll shows a large majority of Americans favor a path to citizenship for most undocumented immigrants.

http://www.nationaljournal.com/daily/public-wants-immigrants-to-be-able-to-stay-20111206

Comment » | Immigration reform, Lawful permanent resident

Update on Visa Number Availability

November 2nd, 2011 — 2:15pm

In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:

For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month.

For Employment Categories:  EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB-3, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.

Comment » | Department of State, I-485, Lawful permanent resident

Administration Announces Initiatives to Promote Foreign Entrepreneurial Talent

August 22nd, 2011 — 10:28am

For years, America has sought the best and the brightest from business, academia, science, and the arts.  And, U.S. companies have sought to attract key, highly skilled professionals needed to manage, expand, and re-invigorate their operations here. But visa backlogs, limited visa availability, restrictive agency interpretations, and rigid adjudications all have had a chilling effect on those companies who seek to expand and create jobs in the U.S. through the petitioning of foreign personnel. Entrepreneurs, self-styled capitalists, and other self-employed self-starters, large and small, have experienced particular difficulty and uncertainty when applying for nonimmigrant or immigrant visa eligibility, never knowing whether their cases would be approved.  In many instances, the evidentiary burden as applied to them has been disproportionately onerous; in other instances, the documentary evidence required has been misconstrued and disconnected from real business practices.

It is against this backdrop and a tanking economy that USCIS Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano recently outlined – with much fanfare – “a series of new policy, operational, and outreach efforts” designed to help invigorate the economy and stimulate investment by making it easier for highly-skilled immigrants to start and grow companies and create jobs in the United States. Citing the need to attract foreign entrepreneurial talent of all kinds, immigration officials announced plans that could positively affect immigration visa eligibility in several categories if their plans are more than mere fantasy and hype.

National Interest Waivers (NIWs) for Entrepreneurs

First, the government announced that it “will clarify,” presumably with field adjudicators, that immigrant entrepreneurs may obtain employment-based second preference (EB-2) immigrant visas if they satisfy the existing requirements.  The law has always provided for such eligibility and perhaps USCIS is instructing adjudicators to merely apply the law. More notably, USCIS makes clear that entrepreneurs can qualify for an EB-2 National Interest Waiver (NIW), and sheds light on how such individuals can demonstrate that their business endeavors will be in the interest of the United States. Significantly, an individual seeking an EB-2 national interest waiver can self-petition; he does not need an employer to hire him.

Historically, the first step in proving EB-2 NIW eligibility, even for entrepreneurs, has been relatively easy. It requires that an individual is a professional holding an advanced degree or possesses “a degree of expertise significantly above that ordinarily encountered,” or exceptional ability. The second step, proving that the entrepreneur’s investment in a business venture will substantially serve the national interest, has been more challenging. To do so – to qualify for a national interest waiver – the entrepreneur must demonstrate that (1) the proposed employment or work has substantial intrinsic merit; (2) that the benefit to be provided will be national in scope; and (3) that the national benefit is so great that it exempts the individual from undergoing the lengthy and costly process of testing the labor market for U.S. workers through the labor certification process.

In its August announcement, USCIS provides some examples on how an entrepreneur can meet the NIW, or second-step requirements.  To establish the national scope of the proposed benefit of the work, for instance, an entrepreneur could, describes USCIS, show a linkage between job creation in a locality and the spinoff of related jobs in other parts of the country. Alternatively, he could show that local job creation will have a positive national impact. USCIS also opines that an individual entrepreneur might be eligible for exemption from the labor certification process if he establishes that the enterprise is creating new job opportunities for U.S. workers or that it otherwise enhances the welfare of the United States. Through these examples and its broader pronouncement, USCIS seems to be signaling a break from current constructions of what is required and setting out new expectations for these kinds of cases.

Immigrant Investor (EB-5) Program

USCIS plans to enhance and streamline the Immigrant Investor (EB-5) Program. Some components of the streamlined program include a fast-track for applications of enterprises that are fully developed and ready to be implemented, premium processing for certain cases, and the implementation of direct communication between the applicant and USCIS to, among other things, resolve issues without the need for formal requests for additional evidence (RFEs). USCIS is developing a rollout of these changes with the first to be implemented in early September.

Expansion of Premium Processing for Immigrant Multinational Executives and Managers

USCIS also announced that it will expand premium processing service to multinational executives and managers immigrant visa petitions (EB-1-3). Premium processing, which guarantees adjudication in 15 days, is currently available for many other employment-based immigrant visa petitioners, including extraordinary ability foreign nationals and outstanding professors and researchers. However, EB-2 National Interest Waiver petitions remain conspicuously still absent from the premium processing list, an anomaly that is hard to explain. Surely, the certainty of a decision in 15 calendar days through premium processing would encourage a reluctant entrepreneur-petitioner to go forward and invest.  We hope USCIS will rethink this and add EB-2 NIW petitions to the list.

Nonimmigrant Visas

On the nonimmigrant side of the ledger, USCIS unfortunately provides little new guidance. It does, however, state that an H-1B beneficiary who is the sole owner (an employee-entrepreneur) of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa. This has long been a gray area and fraught with tremendous uncertainty in adjudication.

USCIS also announced plans to undertake extensive outreach efforts, including a series of engagement opportunities with stakeholders to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses, and startup companies.  Certainly, other nonimmigrant work visas that are suitable for those in business – Es, Ls, and Os – will be the subject of such efforts and must be addressed. And, given the fanfare associated with the recent announcement, USCIS must be prepared to lay out its implementation plan in real and concrete terms.

Will New Policy Translate into Nonimmigrant and Immigrant Visa Approvals?

Long advocated for by immigrant practitioners, economists, business, and others, the ideas outlined by Secretary Napolitano and Director Mayorkas are welcome news, even if symbolic. The United States needs capital and talent to jump-start the economy, and foreign investors and entrepreneurs — natural risk takers – have long sought status in the United States to conduct business here. Moreover, these initiatives require no new visa category to be enacted and no expansion of visa numbers. What these initiatives do require, however, is flexibility and a common sense application of the law by USCIS and State Department adjudicators. Such decision-makers must be instructed and trained to adapt the specific particularities of everyday business practice to immigration visa criteria, and abandon their more widespread rigid, checklist approach to adjudication.

So, will foreign companies that operate and expand operations in the U.S. see fewer hurdles when seeking to transfer their executive and managerial employees? Will self-starters with big ideas, some capital, and job creation prospects secure green cards? Will EB-5 immigrant investors have greater assurance that the conditions on their residence will be removed? Will foreign E-1 traders and E-2 investors – while not specifically addressed – have more confidence in their renewal applications? Most importantly, will these initiatives trickle down to the field?  Or, is the Emperor wearing no clothes.  Stay tuned….

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, H-1B, I-140, Lawful permanent resident

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