Immediate Relative Green Card Application

FamilyIn U.S. immigration law immediate relative refers to a limited group of relatives of U.S. citizens. The group of people includes: spouses, parents, and children of U.S. citizens. The term child is defined as unmarried and is under 21 years of age. A U.S. citizen has to be 21 years of age or older in order to file green card petition for his/her parents.

One main advantage of Immediate Green Card Application is that it is not subject to the numerical limitations. It means that there is always immediate available visa for immediate relative of U.S. citizens.

There are several points to pay attention in the petition for immediate relatives:

  • The relative relationship must be documented. Biological relationships generally are proven via birth records and related proof of the relative relationship.
  • Petitioning for spouses must be able to prove that that the marriage is bona fide. Documents should be well prepared. The U.S. citizen and his or her spouse should prepare to answer questions in the interview.
  • Affidavit of support is generally required in the process of green card application. The affidavit of support should be filled out correctly to establish the U.S. citizen has the financial ability to sponsor the petition. If not, a co-sponsorship is required.

Our firm will help prepare required documents and interview for clients. Please contact us for your application.

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Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

immigration_stamp美國國土安全部 (Department of Homeland Securities) 在 2016年11 月公佈了一項行政法規 “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” 其内容主要是有关職業移民EB-1,EB-2和EB-3和专业技術非移民員工。这项行政法規將於2017年1月17日生效。

本项法規对于工作移民和非移民雇佣签证有数项重要的新規定。 我们将这些规定整理如下:

1. 新法規明確了獲批准的職業移民I-140申請不会被撤销

职业移民 I-140申請獲批後經過了180天,雇主不能够再将其撤销。即使僱主撤回I-140申請或僱主終止經營, 獲批的I-140將繼續有效。另外一份附隨調整身份的申請(I-485) 只要經過了180天也不會因此而失效。例外情况有除非已經獲批的I-140因為欺詐、或是故意虛假陳述、或是USCIS的實質性錯誤或勞工證明的失效或撤銷而被撤銷 I-140。

對於H1B持有者說,I-140保留有效可謂極其重要。具體而言,一份獲批的I-140申請通常可以保證已達6年H1B上限的H1B持有者繼續申請延期只要他的排期優先日還沒有到。而且,I-140還可以被用來為持有H4身份的配偶申請工作許可(employment authorization document, EAD)。另外,I-140還可能對申請例外且迫切情形下(compelling circumstances)的I-140 EAD卡有所幫助。

2. 失業的非移民工作签证僱員增60天的寬限期 (grace period)

在美国如果要从一个非移民身份申请转到另一个非移民身份,前提是要维持合法的非移民身份。如果是工作签证的持有人必须持续工作已保持身份合法。如果失去了工作,身份就变成非法,而不能转换身份。如果是工作签证的持有人突然失去工作,他的身份就会陷入困难。因为原来的法规对工作签证没有宽限期。在工作停止的當天,外籍員工就會馬上失去合法身份。

新規现在给了一个60天的寬限期。給了失去工作的員工一个机会来处理身份的问题。該規定適用於持有E-1,E-2,E-3, H1-B, H1-B1, L-1, O-1 或 TN 等等類別工作簽證的外國員工。在這個60天之內,工作签证員工不能工作,但可以申請轉換僱主或者申請轉換身份。

3。临时工作卡给E, H, L 和 O 身份持有人

新法规发放临时工作卡 (EAD) 一年期给 E, H, L 和 O 身份符合以下条件的持有人:(a)已经有 I-140 申请获批准;(b) 排期还未到达;加上 (c) 有必要情况。所谓必要情况包括例如生病,雇主报复员工,申请人有重大伤害,或雇主有重大变动 (如雇主公司改组)。

4. 新表格 I-485 的附件J

USCIS 发表了一个新表格 I-485 的附件J. 这个新表格可用在职业移民的 I-485 已经等待超过180 天,根据美国21世纪竞争法案在转换工作时送入附件J 来确认新工作和原工作时相同或类似的工作岗位。

5。E, L 和TN 身份的10 天宽限期

新法规提供E-1, E-2, E-3, L-1, and TN身份的人在开始和结束时各有10 天宽限期,以便当事人可以准备个人事务或转换身份。

6. 工作卡EAD 延期申请可自動延有效期180天

在符合以下情况后,申请EAD 卡延期可自動延有效期180天:

  • 申请延期的类别和原申请的类别一致
  • 延期的申请必须在原EAD卡过期前送入
  • 申请人的申请法律资格必须持续存在
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National Visa Center Email Address for EB-5 Cases

National Visa Center ("NVC") announces that it will create a dedicated email box for questions related to approved EB-5 cases.

Visa applicants with questions related to an approved I-526 petition will soon be able to correspond with the National Visa Center (NVC) using a dedicated e-mail address: NVCeb5@state.gov. The newly created EB-5 Investor Assistance Desk launches on February 22 2016, is part of NVC's continuing efforts to improve its services.

Upon receipt of an approved petition from USCIS, the NVC's Investor Assistance Desk will oversee the addition of potential derivative applicants and creation of fee bills. Customers will e-mail their derivative's relationship documents to NVCeb5@state.gov, which can also be used for inquiries on derivatives, the Child Status Protection Act, and general case status.

NVC's process of document qualifying an immigrant visa case and scheduling an interview overseas remain the samee. All visa applicants, including those in the EB-5 category, should submit their financial, civil, and supporting documents to NVC in one package following the instructions on http://nvc.state.gov/submit. The goal of NVC's Investor Assistance Desk is to provide more transparent and effective customer service through a team specially trained in the I-526 petition.

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New Procedures May Allow Adjustment of Status Applicants to File AOS Earlier

Visa_pageStarting October 2015, the State Department (DOS) changes the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status.

The changes are that two charts will be posted in the DOS Visa Bulletin:

  Application Final Action Dates (dates when visas may finally be issued); and

  Dates for Filing Adjustment of Status Applications (earliest dates when applicants may be able to apply).

This revised process will enhance DOS’s ability to more accurately predict overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates.

It used to be that adjustment of status can only be filed when visas are available on the DOS visa bulletin.  After the new procedure is implemented, adjustment of status can be filed when the AOS date is available in the new chart.  This can benefit the applicants significantly.  As adjustment of status is filed, the applicant and family members can enjoy Employment Authorization Card and Advance Parole, and may be beneftted if his or her non-immigrant status expiration date is approaching.

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Bill Introduced to Increase EB-5 Investment Amount

Visa_Apply_ApprovedCongress may overhaul the EB-5 immigrant-visa program. A bill introduced in June of 2015 by Senators Patrick Leahy, D-Vt., and Chuck Grassley, R-Iowa, would reform it.

The bill would raise the minimum investment by an immigrant to $800,000 for targeted employment areas (TEA) and $1.2 million for everywhere else. And EB-5 regional centers, which pool capital from immigrant investors, would be subject to more scrutiny through background checks, site visits and audits to combat fraud. 

There are also additional important changes made to the EB-5 program:

  • Administration fees must be sources.
  • 7 years of tax return of investors is mandatory.
  • Documents required showing Identity of Intermediaries.
  • Gift can be made only by close family member.
  • Loan must be secured by assets of the investor.
  • Lending bank must be reputable or licensed lending institution.

A detailed description of changes proposed in this bill can be reviewed here.

 

美国国会投资移民EB-5在审查新法案重点:

  • 目标雇佣区的投资额由50万升至80万。一般区的投资额由100万升至120万。
  • 投资移民申请行政费用来源也须申报。
  • 需要7年的税表。
  • 投资资金转入的中介,须有身份证明。
  • 投资资金如果是赠与,必须是由近亲家属赠与。
  • 投资资金如果是贷款,抵押的资产必须是投资人的个人资产。
  • 贷款必须是从有信誉的银行,或是从有执照的贷款机构。

 

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Summary of New Immigration Bill Proposed by Senate

On April 16, 2013, a group of senators known as the "Gang of Eight" introduced S. 744 a new immigration bill entitled the "Border Security, Economic Opportunity, and Immigration Modernization Act." There are at least eight main points in the bill:

  1. The bill allows noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card.
  2. The bill makes several changes to family immigration. It moves the current FB-2A category into the immediate relative classification, and allows derivatives of immediate relatives to immigrate with principal applicants. It eliminates the FB-4 category and cap the age of eligibility of married sons and daughters of U.S. citizens at the age of 31.
  3. The bill exempts several categories from the quota and make immigrant visa immediate available. Those categories include: EB-1 immigrants, doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. The bill also adds a new "EB-6" category for certain entrepreneurs.
  4. The bill creates a W-1 visa for lesser-skilled workers, and also a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract. It creates a W-3 visa for "at-will" workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.
  5. The bill eliminates the one-year filing deadline and authorizes asylum officers to grant asylum during credible fear interviews.
  6. The bill increases the H-1B quota to a number between 110,000 and 180,000. It also increases the U.S. advanced degree exemption to 25,000 but it is limited to STEM graduates. It adds a recruitment requirement for all H-1B labor condition applications to have a posting on an Internet site designed by the Labor Department, and a non-displacement attestation. The bill changes the prevailing wage formula, adds EAD card availability for H-1B spouses, and also adds a 60-day grace period after an H-1B has been terminated from his or her job.
  7. The bill makes it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. It requires the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against unscrupulous immigration service providers at the federal level.
  8. The bill requires all employers to be in the E-Verify system after 5 years.
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F-1 Student Remains in Status after OPT Expires Before October 1st

It is a frequently asked question. There are many F-1 students who are in the Optional Practical Training (OPT) program every year. The OPT program allows the students to stay in the Country and can work legally. An OPT has an expiration date. In theory a student needs to secure an H-1B status before the OPT expires in order to continue to work. What happens if an OPT expires before October 1st of the year, at which H-1B begins for the fiscal year?

The Department of Homeland Security (DHS) in 2008 issued a regulation extending the authorized stay for F-1 students who are currently working under Optional Practical Training (OPT) and their employers have timely filed H-1B petitions on their behalf to change their nonimmigrant status from F-1 to H-1B. What if a student's OPT was valid at the time of filing the H-1B petition, but the OPT will expire before October 1? In that case, the student can remain in good status and can continue to work through September 30th of that year, either the H-1B petition is pending at the USCIS or it's been approved.

The automatic extension of an F-1 student's duration of status and employment authorization is immediately terminated upon in the event of rejection, denial, or revocation of the H-1B petition filed on behalf of the F-1 student. If USCIS denies a pending H-1B petition, the student's F-1 status will decide the continued ability to remain in the U.S. In general, the student will have the standard 60-day grace period (from notification of the denial or rejection of the petition) before they have to leave the United States.

If a student completed his or her post-completion OPT and is in a subsequent valid grace period at the time the cap subject H-1B petition was filed, the student will receive an automatic extension of his or her F-1 duration of status. But the employment authorization is not automatically extended under the circumstance because the OPT would have already expired. The automatically extended period does not reinstate or grant continuing employment authorization during the period.

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H-1B Petitioner: Have Your LCA Ready before April 1st

In recent years H-1B quota generally runs out fast. In 2007, the H-1B quota was totally gone on the first day of accepting petitions. In 2012, the H-1B quota ran out in June. With the economy picking up, the quota this year may run out even faster. Every H-1B petitioner needs to watch carefully of the H-1B quota progress.

Before filing H-1B petition, the employer needs to have a certified Labor Condition Application (LCA) from the Labor Department. Normally it takes a few days for the Labor Department to certify a LCA. There are two reasons that it may be a good idea to file the LCA before April 1st so to get it ready earlier.

The first reason is that sometimes there are delays for whatever reason, such as the LCA gets rejected for employer verification problem. The other reason is that, even if the LCA gets certified quickly, it still needs to take at least a few days. In H-1B petitions, a few days can mean a big difference in quota availability.

One of the rules of LCA is that the employer cannot submit a LCA more than six months before the beginning date of period of intended employment. Therefore if the LCA is filed in March, it will make the employment starting date in LCA in September. Since the expiration date cannot be more than 3 years from starting date, the H-1B employee will lose a few days on the back end of the H-1B term.

For example: If the LCA starts on 09/15/13 and ends on 09/14/16, the H-1B will be from 10/01/13 to 09/14/16. In this case it loses about two weeks of the current term. However, since no one knows how fast the H-1B quota will run out, it is worth it to start the case earlier before April 1st, just to avoid unexpected delay in processing LCA that causes filing H-1B too late. Please contact us for H-1B or LCA questions.

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New USCIS Immigrant Fee Starts 02/01/2013

Starting February 1, 2013, U.S. the U.S. Citizenship and Immigration Services (USCIS) has begun collecting a new immigrant fee of $165 from foreign nationals seeking permanent residence status in the United States. The new fee allows USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa holders receive their visa packages from DOS. This includes staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card. USCIS said the fee is to help recoup costs those costs.

The USCIS notice can be found here.

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National Interest Waiver For Entrepreneur In EB-2

An entrepreneur is one who starts and builds his or her business. In the context of employment-based immigration, however, an employer is required in most cases.  The “Nation Interest Waiver” (NIW) offers a solution for those entrepreneurs who qualify the conditions under EB-2 (the second category of employment-based immigration).  A NIW exempts the entrepreneur from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.  Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.

To qualify EB-2, the entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.  If the entrepreneur meets one of the above two conditions, then the entrepreneur needs to decide if he or she meets the requirement of NIW.

Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW.  In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

The term “national interest” is not specifically defined in the statute or the regulations.  However, USCIS issued a precedent decision concerning NIW in the Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. In the decision of the case, it states:

The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement:

  1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
  2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
  3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

In other words, it must be established that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit.  It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

As far as the first prong, the NYSDOT states:  “In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope.  For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create related jobs in other parts of the nation.  Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

In Creating jobs, NYSDOT states: “The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.”

NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States.  An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.  NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

These three tests need to be carefully analyzed in petitioning an EB-2 national interest waiver for entrepreneurs.

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