National Interest Waivers – A Game Changer

The recent decision from the Administrative Appeals Office in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) provides a welcome overhaul of the analytical framework governing National Interest Waivers (NIW). Summarily stating that “we believe that it is now time for a reassessment” the AAO threw out nearly two decades of precedent and handed down new criteria by which NIW’s should be assessed by USCIS. And the good news is that this new framework is not only more intelligible, but it is likely to result in many more approvals for a broader spectrum of applicants than was previously the case.

Some brief context: Most employment-based applications for lawful permanent residency in the U.S. (aka “Green Card”) must begin with the dreaded PERM process, which requires the Department of Labor to certify that no U.S. worker is essentially ready, willing and able to assume the position for which the foreigner is being sponsored. As anyone who has gone through this headache — whether as an employer or as a beneficiary — already knows, this is a tedious, exacting and unforgiving process that most people would prefer to avoid. Fortunately, 8 U.S.C. Section 203 (b)(2)(A) carves out an exception to this requirement for individuals in the EB-2 category (those holding an advanced degree), stating that the Secretary “may, when the [Secretary] deems it to be in the national interest, waive the requirements” of the PERM process. This allows qualified individuals to both self sponsor (ie., a job offer is not required), and to avoid proving that no U.S. worker is available to provide the same services. For more than two decades, what constitutes the “national interest” for purposes of this section was governed by the 3-part test laid down in Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). Until now.

It would be redundant for me to spend time describing the previous framework under NYSDOT. Suffice it to say that this precedent proved to be fertile ground for many conflicting precedents, much confusion on the part of prospective applicants and just as much frustration on the part of their attorneys. The AAO recognized as much in Matter of Dhanasar, stating that based upon the Agencies own experience it was “now time for a reassessment.” And it went on to articulate a new NIW standard that it believes will provides greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States. Under the new framework laid down in Matter of Dhanasar “after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

The foreign national’s proposed endeavor has both substantial merit and national importance.
The foreign national is well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification [PERM].”

Prong #1 requires substantial merit and national importance, but the framework now focuses on the “specific endeavor” that the foreign national proposes to undertake, and specifically provides that “substantial merit may be demonstrated in a range of areas such as business, entrepreneurship, science, technology, culture, health, or education.” Moreover, the AAO noted that while “immediate or quantifiable economic impact” of the endeavor would be favorably regarded for the purpose of showing “substantial merit,” it was not required. The agency pointed to endeavors such as research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

To determine whether the proposed endeavor has “national importance,” the AAO stated that it considers its “potential prospective impact.” It noted that an undertaking “may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.” Taking aim directly at one of the most oft-cited criticisms of NYDOT, the court stated “we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance… In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

Dhanasar’s prong #2 requires that the foreign national demonstrate that he or she is well positioned to advance the proposed undertaking, and thereby “shifts the focus away from the proposed endeavor and onto the foreign national.” The AAO stated that it “will consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” In recognition of the challenges presented in attempting to forecast feasibility or future success, the AAO stated that it will not be require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, “petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.”

Dhanasar’s prong #3 “requires the petitioner to demonstrate that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification.” In a nod to concerns about the domestic labor market, the AAO recognized the intent of Congress to further the national interest by requiring job offers and labor certifications [PERM’s] to protect the domestic labor supply. But, on the other hand, the agency noted that Congress also created the NIW because it recognized that “in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest.” Under this prong, these two interests must now be balanced within the context of individual NIW adjudications.

For the purpose of this balance, the agency noted that “USCIS may evaluate factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.” The AAO emphasized that, in each case, the factors considered “must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO stated that unlike the third prong in NYSDOT, this new prong “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.”

On its face, Matter of Dhanasar provides much needed flexibility and a clearer understanding of the evidence required in order to qualify for a NIW. Notably, the decision clearly opens the door for more entrepreneurs to qualify for NIW. Under the old regime, many entrepreneurs struggled to show that local employment would provide a benefit that was national in scope. And under Dhanasar’s prong #1, they will no longer have to contend with this difficulty. Instead, an entrepreneur could simply demonstrate that the proposed endeavor has significant potential to employ U.S. workers.

It must be stated that even under the new framework, assembling NIW petitions will require significant skill and experience. But this decision opens the door to lawful permanent residency for individuals involved in a wider range of endeavors who would have likely failed to qualify under the NYSDOT standard.

Individuals with TPS who are Married to US Citizens Can Adjust Their Status

So says the 6th circuit in a landmark ruling just handed down.  Finally, a judge who has the courage to apply the statute as it reads.

Chastising the government for its refusal to apply the plain letter of the law, the 6th Circuit concluded its ruling with the following language:

Being consistently wrong does not afford the agency more deference than having valid reasoning…If the statutes are interpreted as the Government argues they should be, the result would be absurd. The Government is essentially telling him that he is protected and can stay here, but that he will never be allowed to become an LPR, even for an independent basis. Under the Government’s interpretation, Mr. Suazo would have to leave the United States, be readmitted, and then go through the immigration process all over again. This is simply a waste of energy, time, government resources, and will have negative effects on his family—United States citizens. We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition.”

USCIS has consistently taken the position that beneficiaries of Temporary Protected Status who entered without inspection and are married to US citizens are ineligible to adjust their status because they were not “admitted” within the meaning Section 245(a).  This position is flatly contradicted by the TPS statute itself, which clearly states that an individual with TPS is considered to be “in lawful status.”

It remains to be seen if USCIS will grant deference to this ruling outside of the 6th Circuit.  But what a glorious start!

If you have TPS and are married to a US citizen, contact my office today to see if you may benefit.  Call immigration attorney Karyn Schiller at 914 358-1400 or Click here to make an appointment

Will Immigration Reform be Extended to Gay Couples?

If passed, the immigration reform bill introduced at the beginning of this month by the so-called “Gang of Eight” (4 Republican and 4 Democratic Senators), will bring relief to millions of undocumented immigrants currently living in the shadows.  But not to one group of would-be immigrants. Gay spouses are not included in the bill because to do so, say the Republicans, would guarantee the bill’s rejection by Congress and spell the end of reform for anyone. Senator Patrick Leahy (D-VT) has introduced his own bill that would effectively extend the immigration law to gay couples as well, but the chances of this bill seeing the light of the Senate floor are dim.

That may be, but it sure doesn’t make it right.  The current situation that allows US citizen spouses to petition for the immigration of heterosexual but not homosexual spouses is simply inexcusable.  The current legal basis for this policy is the Federal Law known as the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman for the purposes of federal laws – immigration law included.  Just recently the Supreme Court heard arguments on the constitutionality of this law, and if the tea leaves are accurate, may well be inclined to strike it down.  If so, this wouldn’t be a minute to soon for thousands of committed gay couples, including the two women profiled in this article.

At the Law Offices of Karyn Schiller we are keeping our fingers crossed that ALL immigrants get a fair chance to legalize their status in this country, gay or straight, black, white or anything inbetween!

Call immigration attorney Karyn Schiller today at 914 358-1400 for a professional consultation or
Click here to make an appointment

Is an Immigration Amnesty on the Horizon?

Today’s New York Times is reporting that President Obama plans to introduce legislation offering comprehensive immigration reform as early as this March! Of course we cannot know if such legislation will survive its torturous way through the House and Senate.  However, one thing is clear.  Whether comprehensive or not, immigration reform is coming.  Soon.  So now would be a good time to begin gathering all of the documentary evidence you will need.  If past programs provide any guidance, it is that you will need to provide USCIS with as much documentary evidence of your presence in the country since your arrival.  So what does that mean – look for your tax returns going back as far as you filed them (and if you don’t have them, call the toll-free number on the IRS.gov website to order your tax transcripts); utility bills, phone bills, old leases, school records and medical records are just some of the proof that might help you over the finish line.  And for more information, call immigration attorney Karyn Schiller at (914) 358-1400 or Click here to make an appointment.

If You Entered without Inspection, You May Just have Won the (Immigration) Lottery

Back in January of this year I wrote about the pending change that could help spouses of US citizens who entered without inspection.  Thanks to the implementation of a new rule, starting on March 3, 2012, spouses, parents and minor children of US citizens who entered the country without inspection, may be eligible to apply for Green Cards without having to leave the country and face a prolonged separation from their family. This is great news for thousands and thousands of immigrants who are otherwise eligible to apply for Adjustment of Status, but have delayed doing so because they did not want to have to process through the Consul in their home country and run the risk of being stuck abroad for a lengthy period, or worse, being unable to return at all.

In 1997 US Immigration Law was changed so as to bar re-entry to the US for either 3 or 10 years to any individual who had entered illegally and/or overstayed his/her visa for more than 6 month or 1 year, respectively, and then left the country. Additionally, individuals who entered without inspection, even if they subsequently married a US citizen, were no longer eligible to apply for a Green Card from within the US but had to return home and process through the Consul.  Putting these two provisions together created a catch-22 situation whereby the spouse of a US citizen who had entered illegally was required to return home in order to apply for a Green Card, but as soon as he/she did so, the 3 or 10 bar to re-entry was triggered.  The spouse was always eligible to apply for a waiver of the bar, but would have to remain outside for as long as it took to adjudicate this waiver application. Further, if denied, the spouse would find his/herself stuck abroad for either 3 or 10 years.  In practice, most such individuals simply chose to remain in the US without documentation and continue living in the shadows, rather than take this risk.  Until now.

From March 3, 2012, applications for a waiver of the 3 or 10 years bar can be submitted from within the US. Further, the spouse who has applied can continue to remain here while the application is being adjudicated.  Only when (and if) it is approved, will a brief trip home to pick up the visa at the Consul be required.  But if all goes well, this should be nothing more than a formality.  It is important to note, however, that the standard for obtaining a waiver has not changed.  Indeed, you will still need to prove exceptional hardship to your US citizen spouse or parent in order to qualify – a process that I strongly recommend you do not attempt without the guidance and assistance of a competent immigration attorney.  But at least you will no longer have to face a long or possibly permanent separation from you loved ones.

If you think you may be eligible for this new benefit , don’t delay. Call  (914) 358-1400 today or email Immigration Attorney Karyn Schiller.  Just  Click here to make an appointment

Immigration Reform is Coming

I can feel it in the air.  Immigration reform is coming.  Watching the politicians and talking heads on TV shows clearly that both the Democrats and Republicans, for different reasons, each have an incentive to back legislation that will address the questions of the millions of undocumented immigrants in the US.  The Republicans learned during this past Presidential election that if they do not do something to win over the growing Hispanic community, within about 20 years they will be a defunct party of mostly whites, drifting without any anchor to the new demographic reality in the US. And the Democrats, even those who did not support immigration reform the last time around (and yes, not all Democrats voted “yes”), realize that they owe the Hispanic coalition big-time for its help with President Obama’s re-election.  And for the purpose of upcoming Congressional elections they too have the incentive to keep on the good side of this constituency.

So what does this all mean for you?

Right now, you should be getting your house in order and preparing for the time when you will have the opportunity to apply for legal status in the US.  Regardless of how broad the coming legislation will be, whether it will cover only students or older undocumented aliens as well, we can be certain of one thing…. you will have to PROVE with convincing evidence, that you were in fact in the country on the (as yet undetermined) specified date, that you have paid your taxes and can pass a basic English test.

Attorney Karyn Schiller has assisted countless numbers of immigrants just like you.  She has guided them on which evidence is favored by USCIS and on how to put together a package that is clear and convincing.  After all, nobody (especially clerks at USCIS) wants to have to page through dozens of documents that are unclear and don’t explain why they support the application to which they are attached.  When an application leaves this office, it is put together in a way that makes it as easy as possible for the immigration officer reviewing the case to stamp “APPROVED.”  Nothing is filed until attorney Schiller is  sure that everything that is required is included and explained.  And if you  cannot find a document that is required, Karyn Schiller will explain away its absence in the most convincing way possible.

So get ahead of the game and take care of your legal future in the US.  Call immigration attorney Karyn Schiller today at (914) 358-1400 or Click here to make an appointment

Trafficking Victim Finally Becomes Legal in the US

Today is a very happy one for one of my clients – lets call her client X for reasons that will be obvious.  After several years without hope of ever obtaining legal status, her Petition for T-Non Immigrant Visa status was finally approved.

X came to my office about 3 years ago together with her U.S. Citizen husband to find out if there was anything I could do for her.  She told me that although her father was a US citizen and her mother a Green Card holder, she had been born abroad and was without legal status.  It was X’s understanding that her mother had returned to her home country to give birth to my client and then brought her into the US by passing her daughter off as her US citizen niece.  At this point I should add that from an immigration perspective, falsely claiming to be a US citizen is about as bad as it gets, and no waiver is ever available for immigrant purposes.   Even though my client was a minor at the time her mother perpetrated this fraud and should not be held accountable for something over which she clearly had no control, USCIS has long held differently.  So with this knowledge I informed my client that there was not much I could do for her because of this type of entry

I did, however ask my client to go back and talk to her parents to be sure that this was, in fact, what had happened.  From experience I know that often times the facts of a case turn out to be quite different than a client first presents, whether because of ignorance or even inadvertent error.  Neither of us was prepared, however, for what we did learn.  After various steps we learned the shocking news that not only was X’s father not, in fact, her biological father, but neither was her mother her biological one!  Rather, it transpired that the client’s mother had apparently paid a family (still of unknown identity) for my client and passed her off all these years as her own daughter! It goes without saying that my client was devastated to learn that not only were her parents not who she had always thought they were, but that she really had no idea who she was.

At that point I began to question my client more closely, suspecting that where a “mother” was capable of such deception there must undoubtedly be more to the story.  And slowly I uncovered a nasty history.  Throughout her childhood, my client had been used by this “mother” as free slave labor in her restaurant.  Even as a very young child, X had been forced to work in the restaurant every day after school until late in the night, had spent all her weekends and school vacation days working, and if she so much as hinted that she was unhappy, was beaten severely.  With this knowledge it dawned upon me that something good might actually come out of this tragic story.

A T-Nonimmigrant visa is available in the US to victims of a severe form of human trafficking.  USCIS offers this visa so as to encourage trafficking victims to come forward, identify their traffickers and then cooperate in their prosecution.  The standard is a high one, and an applicant must prove that he/she was trafficked for the purpose of either commercial sexual exploitation, or forced labor.  Certification from a Law Enforcement Official is not required, but is certainly advisable.  Many calls and much legwork later, I uncovered a sympathetic prosecutor with the appropriate United States Attorneys Office.  After interviewing my client and satisfying herself that she was telling the truth, the prosecutor signed off and we were off to the races, so to speak.  We filed the T- visa application package with as much supporting documentation as we could garner and today, approximately 4 months after filing and more than 20 years of living in the shadows, X is finally legal. And based upon her marriage to her very supportive US citizen husband, we will shortly be in a position to file for her Green Card.

While it goes without saying that I fervently hope that no one else finds themselves in this kind of situation, if you or someone you know believes that they have been the victim of trafficking into the United States, Click here to make an appointment or call Attorney Karyn Schiller today at 914 358-1400

Not the Dream Act – but close…

The announcement from the Obama Administration today that it intends to grant deferred action to certain undocumented immigrants who were brought here by age 16 is a welcome announcement but does not go nearly far enough.  The details of what the program entails are not clear yet and much remains to be seen.  What is clear, however, is that no path to a Green Card is offered!  So while the program may offer employment authorization and a temporary respite from fear of deportation for 2 years (and perhaps longer), it does not solve the long-term problem of dreamers.  That is, how to get legally recognized what they already feel and know they are – American.

And my fear is that once all of these young adults are registered with USCIS, if they don’t land up getting Green Cards, ICE may know just where to find them if the program ends.  The devil is always in the details.  So before you rush ahead to file anything, be sure to understand all of the potential consequences.  Click here to make an appointment with  Karyn Schiller for up-to-date advice and professional representation by an immigration attorney who cares.

The U Visa. How Immigration Law Can Help Undocumented Crime Victims

Undocumented immigrants are one of the most vulnerable population groups in this country.  All too often these immigrants are exploited by unscrupulous employers and others, who use and abuse them, safe in the knowledge that they will not be reported.  But even where these crime victims were not deliberately targeted because of their immigration status, they may still be too afraid to come forward and report the crime, for fear that it may lead to their own deportation.  All too many rapes, assaults, thefts and other crimes that are traumatic to the victim and usually his or her family as well, go unreported and the perpetrators get off without any consequences.  It does not have to be this way.

The U non-immigrant status (or “U visa”) offers immigration protection for victims of qualifying crimes who are helpful to law enforcement in the detection, investigation, or prosecution of the criminal activity.  Provided that certain criteria are met, the undocumented crime victim will have the chance to apply for immediate non-immigrant status.  This status will allow them to live and work in the United States for up to 4 years, with a shot at Legal Residency (a “Green Card”) a few years down the road.  Receiving a U-visa does not directly or necessarily grant lawful permanent residency. Lawful permanent residency will be granted only to U-visa recipients who can provide evidence that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution and that their continuous presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.

But it is not only the undocumented crime victim who benefits from this opportunity.   Indeed, Law Enforcement Agencies across the United States have come to recognize the value of the U Visa, inasmuch as it encourages victims to report crimes and then cooperate in the prosecution of the perpetrators. By providing U-visa certifications, law enforcement officials add to their arsenal of crime-fighting tools because victims feel safer coming forward to report crimes. So who can get a U visa, and how to do so?

To be eligible for a U-visa, immigrant victims must meet four statutory requirements and they must include a certification from a certifying official or agency that they have been, are being, or are likely to be helpful in the detection, investigation, or prosecution of a qualifying criminal activity. The law requires that a person who is eligible for a U-visa must:

(1) have suffered substantial physical or mental abuse as a result of having been a victim of a
listed criminal activity;

(2) possess information concerning such criminal activity;

(3) have been helpful, be helpful, or be likely to be helpful in the investigation or prosecution of a crime; and

(4) have been the victim of a criminal activity that occurred in the United States or violated the
laws of the United States.

So which crimes qualify?

A “non-exclusive” list of qualifying criminal activities is provided in the statute. The list includes rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state, or local criminal law. The list also
includes attempts or conspiracy to commit any of the listed activities.

Once it is determined that the undocumented immigrant has, in fact, been the victim of a qualifying crime, the next issue to consider is what he or she needs to do.  It is important to recognize that a U visa does NOT require the successful prosecution of the perpetrator.  Indeed, there need not ever be a prosecution or even the initiation of an investigation.  Congress explicitly crafted the U-visa immigration protections for victims so as not to interfere with the discretion that investigators and prosecutors have to investigate and choose whether to prosecute criminal activity in any particular case. If an immigrant crime victim has offered or is willing to offer assistance to law enforcement officials or prosecutors regarding such activity, the outcome of the case (or whether authorities ever proceed with the case) is not relevant to a victim’s U-visa eligibility. In addition, investigation or prosecution of some criminal activity is impossible because the perpetrator cannot be located, has diplomatic immunity, or has been deported. U-visa status can therefore be granted even when police decline to investigate or prosecutors decline to charge perpetrators, when charges are later dropped, or when prosecutors are unable to secure convictions.

However, the critical item that must be secured from Law Enforcement, is a certificate of cooperation. A U-visa applicant must obtain a certification from a police chief, a sheriff, a prosecutor, designated law enforcement official, judge, or other federal or state authority that is detecting, investigating, or prosecuting any of the criminal activities listed in the U-visa statute or regulations, that they have been helpful. This helpfulness can include past assistance to the police in reporting the case and cooperating in the investigation, current helpfulness to the prosecution or willingness to be helpful in providing information to prosecutors and potentially testifying as a witness.  Without this certification, the application for the U visa will be denied.  Some examples of helpful actions include, but are not limited to, calling 911 to report the crime, providing a statement to the police, filing a police report, or seeking a protection order.

It is important to recognize that obtaining a U visa is not always a simple matter.  An immigration attorney who has good relationships with Law Enforcement agents at both the state and federal level can often make all the difference.  Having an advocate on your side who is mindful of the bigger picture, including your immigration status can made all the difference.

So if you have recently been the victim of a crime and are concerned that reporting it may result in immigration difficulties or deportation proceedings being brought against you, contact Immigration Attorney, Karyn Schiller.  Call 914 358-1400 or Click here to make an appointment. Karyn Schiller is a skilled and professional attorney who has many years experience fighting for her clients.  Ms. Schiller brings compassion and dedication to the office, each and every day.  Call today and go from being the victim to the victor

Good News for Some Who Entered Without Inspection

Just a couple of days after my last posting on waivers, USCIS announced its intention to begin processing requests for waivers of unlawful presence in the United States for certain categories of immigrants.  Under the new rule, spouses of US citizens and children of US citizens who entered without inspection will be allowed to apply for a waiver of unlawful presence IN THE UNITED STATES, and if they are approved, travel home to simply pick up the visa.  This means no more waiting abroad for months while the waiver application is being adjudicated.

This is really good news for so many of you.  And when will this new rule take effect?  Homeland Security has already begun working on the logistics and has stated its intention to have the new system up and running by the end of the year.

So what exactly is this new rule? And who will it help?

Individuals who entered the US without inspection are barred from getting a Green Card in the US even if they are married to a US citizen or are the child of a US citizen.  Such individuals are required to travel home and apply for their visa at the Consul, but as soon as they leave the country they automatically trigger a 3 or 10 year bar against returning to the US, depending upon how long they have been here without status (this bar is known as the unlawful presence bar).  Thus, in a time consuming and cumbersome procedure, they are required to first apply for the visa at the Consul, get a denial,  and only then can they apply for a waiver of the unlawful presence bar.  And this entire process takes anything from 4-10 months, leaving families separated and frustrated.  No more.

Once this rule goes into effect, if you entered the country without inspection and then married a US citizen, you will be permitted to apply for the waiver before you leave, wait here while it is adjudicated, and then assuming it is approved, travel home briefly to pick up your visa.

It is important to note that this new rule does not change the standard for the waiver.  Applicants will still be required to show extreme hardship to either their US citizen spouse or a US citizen parent in order to qualify.  Moreover, the rule will not change anything for spouses of Green Card holders  (Note to Green Card holders married to individuals who entered without inspection – now is the time to get your citizenship!!).

So if you entered without inspection and are married to a US citizen, call attorney Karyn Schiller today to set up an appointment.  Ms. Schiller is an immigration attorney with an enormous amount of experience and dedication.  Karyn Schiller cannot promise you that your waiver will be approved, but she does promise you her full attention, the benefit of her tenacious advocacy as well as an honest assessment of your case.

So call (914) 358-1400 today or email Karyn Schiller.  Just  Click here to make an appointment

Entered the US without Inspection? There is Still Hope for your Green Card

US Immigration Law is particularly unforgiving towards those who entered the country without inspection.  Even marriage to a US citizen – which is usually sufficient to overcome most immigration violations – does not help.  If you cannot produce a passport or I-94 card proving that a Customs and Border Patrol Officer stamped your entry into the country you are precluded from adjusting your status (ie., getting a Green Card) without having to first leave the US.  Period.  And to make matters worse, if you have been here out of legal status for more than one year, once you do depart the US you will trigger a 10-year bar against returning.  Talk about catch-22.  Stay and you can’t get a Green Card.  Leave and you are barred from returning for up to 10 years!  So what to do?

In reality the situation is not quite so dire.  The reason is that the 10-year bar for unlawful presence can be overcome if a successful waiver application is made.  And the latest statistics released by the Department of Homeland Security demonstrate an almost 85% approval record for waivers of INA Section 212(a)(9)(B)(i)(II) (unlawful presence in the US of 365 days or more within the past 10 years).

INA Section 212(a)(9)(B)(v) authorizes a waiver of unlawful presence to a would-be immigrant “who is the spouse or son or daughter of a United States citizen or a [Green Card holder].” The bar is set high, however, and requires the applicant to demonstrate that the “refusal of such foreign national would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.”

Three important points should be noted:

  1. Hardship to the alien is of no consequence.  Similarly, as difficult as it might be to comprehend, hardship to a US citizen child is also irrelevant.  The only hardship that matters is that of a US citizen or Green Card holder spouse or parent.
  2. The standard for a waiver is “extreme hardship“, which is a high one.  And the courts have uniformly held that “merely living apart from one’s spouse or parent” does not rise to that level.  The applicant must demonstrate hardship above and beyond that which is to be expected from the separation of family members. So without meaning to sound cavalier, when it comes to waivers, worse usually is better.  There is no ironclad definition of what constitutes “extreme hardship, but factors such as the burden of special-needs children (remember, hardship to the children won’t count.  Rather, the hardship to the remaining parent of caring alone for such children is what bears weight in a waiver), reliance upon the income of the alien (particularly where he/she is the sole breadwinner), aggravating medical conditions that require the alien’s presence or care, mental illness on the part of the qualifying relative (depression) are all factors that will carry weight in a waiver application.
  3. Parents of US citizens or Lawful Permanent Residents are not eligible for the waiver.

Preparing a persuasive waiver application takes a significant amount of time, effort, dedication and meticulous attention to detail.  Affidavits, medical histories as well as a compelling legal and factual argument on the part of the attorney that puts the situation into context are all critical.  The examiner will not take the time to appreciate the significance of the material you submit.  Without a succinct and persuasive summary from a competent attorney that demonstrates why you meet the standard, you risk a denial.

So if unlawful presence in the US is what stands between you and your Green Card, call my office today at (914) 358-1400 or Click here to make an appointment

Attorney Karyn Schiller is a tenacious advocate and can be relied upon to prepare a comprehensive waiver package that is persuasive, detailed and puts your case in the best possible light.  Call Ms. Schiller today

Avoid Losing H-1B Status While your Adjustment of Status Application is Pending

It is common for an H-1B visa-holder on whose behalf a PERM and I-140 Petition for Alien Worker has been approved to wait years before they are eligible to actually adjust their status (ie., apply for and receive their “Green Card”).  This is a direct result of the huge backlogs in visa numbers for Employment-Based 3 category workers and even EB-2 category workers who were born in China, India, Philippines or Mexico.  As a consequence of this delay, these individuals (at the expense of their employers) may find themselves having to extend their H-1B status several times, even beyond the standard 6-year time limit that typically governs H-1B visas (once a PERM or I-140 has been pending more than 365 days, the employee is entitled to extend his/her H-1B visa beyond the 6-year limit).

After spending years dealing with immigration lawyers to file multiple extensions, these employees are only too relieved when they are finally eligible to file for their Adjustment of Status and receive Advance Parole, which allows them to travel in and out of the US while they wait for the application to be adjudicated. Moreover, the employees are often similarly relieved to receive their Employment Authorization Document, pursuant to which they can now take on a second job or just use it to continue working at their current employment.  And probably most of all, their employers are only too relieved to be done with the costs associated with keeping up the H-1B status.

Relieved to be done with worrying about their H-1B status and having to renew their visas at their home consul every few years, the employee happily travels home to visit their family and then re-enters the US on Advance Parole blissfully unaware that at the moment of re-entry to the US they have effectively relinquished their H-1B status.  The significance of this occurrence is that if their Adjustment of Status application is subsequently denied, they are immediately out of status. And the exact same applies to any employee who received their Employment Authorization Document and then used it to either take on a second job, or merely to avoid having to renew their H-1B status.  Once the employee has worked on the Employment Authorization Document they have effectively terminated their own H-1B status and are out of status if their Adjustment is denied.

I regularly receive calls from employers or their employees who have used the benefits of a pending Adjustment of Status application to either work or travel, received a denial and want to know what the consequences are.  To be clear, they are potentially grave.  If your EAD is simultaneously revoked, you are required to immediately stop working and may well be accruing unlawful presence as well.  And if you depart the US after accumulating 180 days of unlawful presence, you trigger a 3-year bar to returning! Furthermore, if you have already exceeded the 6-year limit in H-1B status you will not be eligible to get it back, leaving you almost out of options.

While I  appreciate all too well that maintaining H-1B status even while an Adjustment of Status application is pending can appear to be an unnecessary expense, I counsel all of my clients to maintain their non-immigrant status right up until the time that the Green Card application is actually approved. Typically by that point the employer may have already renewed the H-1B once before, which leaves the company liable for a nominal filing fee only.  And for the price of the legal fee involved in the renewal the employer may well be saving his/herself substantially more time and money down the road.  Particularly if you consider the cost of losing that employee’s services for as long as it may take to sort out the mess (assuming, of course that it is doable).

To employers of H-1B visa holders and the visa-holders themselves, I urge you to avoid the unnecessary, last-minute panic associated with falling out of status and to maintain your non-immigrant status for as long as it takes to actually receive the Green Card.  It may may well prove to be the cheapest option in the long run.

Call my office today at 914 358-1400 to receive your free consultation on how to avoid falling out of status in this or any other manner.  Or just Click here to email me now. 

Update on Asylum for Egyptian Copts

Since my last posting on US asylum for Egyptian Coptic Christians I have interviewed and spoken with many, many of you, both in the US and from Egypt who are interested in proceeding.  Based on my discussions with you and with 2 experts on the subject it seems that conditions in Egypt right now have clearly undergone a material change.  Although it is not as simple as simply stating “I’m a Copt and I want asylum”, it is also true that right now USCIS is favorably disposed towards these claims. Indeed, some of you are not even aware of how solid your claim for asylum really is.  This is because sometimes the facts that are important to clients in their every-day lives are different than those which USCIS considers most critical.  For example, many of you have asked if the fact that you cannot document past persecution will doom your case.  In other words, does the mere absence of any past persecution  mean that you will not qualify for asylum now.  The answer to that question is NO. After all, an asylum claim is based upon a well founded fear of “future persecution“.  So while evidence of persecution in the past may be “helpful” it is not dispositive. And having a skillful lawyer who knows the best way to present the facts of your case, as well as testimony from the most credible expert possible can help convince a Judge of the likelihood that you will be persecuted for being Christian if you are forced to return to Egypt.

So if you have been in the US for more than a year without filing a claim, do not despair.  It may still be possible.  Call my office today at 914 358-1400 to see how I may be able to help.

Asylum for Egyptian Copts

US Asylum law is notoriously unforgiving and the maze of technical requirements all too often result in otherwise-deserving applicants being denied asylum.  One such requirement is that applicants file their application within one year of arriving in the US.  Failure to timely file an application is a bar to  asylum.  This time-bar can, however, be overcome.  For example, where an applicant can show a “change in country conditions” that materially affect his or her entitlement to asylum, the one-year time bar will be waived.   In the case of Egyptian Christians I would argue that this criteria is currently present.  Always a barely-tolerated minority, Egyptian Copts were never treated equally under the regime of former President Mubarak.  For example, Moslem schools received Government funding and Christian schools did not and it was all but impossible to secure a permit to build a new Church or even to renovate an existing one.  And these were just some of the daily indignities faced by Christians.

Since the Revolution that resulted in Mubarak’s ouster, however, there has been a three-fold increase in the number of attacks on Christians.  Just a couple of days ago the world witnessed the military firing on a peaceful protest by Christians, using military vehicles to mow down civilians and acting with brutality that would have done any middle-eastern dictator proud.  This unprovoked attack resulted in the deaths of at least 25 civilians.  And this was just the latest in a relentless series of attacks on Christians while the military which is currently in control of the country looks the other way.

This is clearly a dangerous time for Egyptian Copts and in the face of these facts, it would seem that asylum claims by such individuals should be viewed in a different light than previously.  Of course any case will always turn on its own facts.  Merely being Christian and Egyptian should, but may not be enough to win an asylum claim.  However, a skilled attorney who is capable of forceful advocacy on his or her clients’ behalf should have little difficulty in putting together a persuasive package.  So if you are a Christian Egyptian who has been in the United States for more than a year, or even if you have just arrived, Click here to email me or call my office today at (914) 358-1400 to discuss whether you may qualify for asylum in the United States.

USCIS Ignores Homeland Secretary’s Call to Encourage Entrepeneurs to Set up Shop in the US

With great fanfare on August 2, 2011 Homeland Secretary Janet Napolitano announced a set of initiatives designed to fully utilize immigration laws to promote startup enterprises and spur job creation.  Immediately following Secretary Napolitano’s statement that “the United States must continue to attract the best and brightest from around the world to invest their talents, skills and ideas to grow our economy and create American jobs,” USCIS Director Mayorkas confirmed that “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”  With due respect to our Homeland Secretary it would seem that she is either unaware of how USCIS actually adjudicates petitions filed on behalf of immigrants who would brings jobs and growth to our economy, or the entire announcement was nothing more than one big publicity stunt on behalf of her boss.  Take your pick. Either way the announcement bears little or no relation to the facts on the ground and USCIS continues to enforce policies that any normal person would think are deliberately designed to keep out the best and brightest from the US.

For the past 18 months USCIS has been on the war path against H-1B petitions filed by corporations on behalf of an employee who is also the corporation’s sole owner.  In defiance of long-standing legal principle that considers a corporation to be a separate legal entity, USCIS is denying these petitions on the grounds that no bona fide employer-employee relationship exists.  To put this in proper context, it is important to remember that H-1B visas would not otherwise be available to just any worker who willy-nilly sets up a corporation and uses it as a vehicle to come to the US.  These visas are limited in number (approximately 65,000 per year), available only to individuals who have at least a bachelor’s degree (or the equivalent experience) and who will be working in a “specialty occupation” (defined by USCIS as an occupation that requires the application of a specialized body of knowledge).  More importantly, corporations that sponsor these individuals must commit to paying at least the prevailing wage as determined by the Department of Labor.  This provision is correctly designed to prevent companies from undercutting the US labor market by paying lower wages to foreign workers.  In other words, these are exactly the kinds of entrepeneurs that we should be encouraging to set up shop in the US.  Educated individuals who will perform skilled labor, make at least enough money to pay themselves the prevailing wage and grow sufficiently so as to then hire American workers.

Following the announcements Director Mayorkas responded to a question from the press on this exact issue. He was asked whether according to this new policy someone who wanted to start their own company would now be qualified for an H-1B visa.  Mayorkas fudged the answer by responding that “there must be an employer/employee relationship.” Justifiably unsatisfied with that answer the journalist followed up with this question: “Before if you were the only sole owner of the company, you’re not qualified? And now if you’re the only owner of the company you are qualified, right? Is that the case?”  Director Mayorkas tried to avoid answering  directly by stating that being the sole owner of a company did “not necessarily mean that the individual could not be the beneficiary of an H-1B visa for which the company applied” because … and here comes the good part….”the company might have an independent board of directors that controls the employment of that individual who is the sole employee and who started the company.”  So lets get this straight.  Someone who is educated, hard working and willing to put their capital at risk in a start-up venture in the US would cede control over his own employment to an outside board of directors?? I’m not sure whether to laugh or cry at that answer.  One thing is clear, however.  USCIS continues to deny petitions filed by companies on behalf of their sole owners and nothing has changed on the ground since this announcement.

So once again I ask.  Was this simply a publicity stunt designed to fool the public into actually thinking that someone was giving serious thought to utilizing our immigration laws in order to to create jobs and grow the economy?  Or merely another example of an official who lacks any understanding of how the real world operates?  You be the judge.

College PERMs in Jeopardy

The chaos currently prevailing at the National Prevailing Wage Center (NPWC) threatens to undermine the Special Handling framework that governs PERMs filed by Institutes of Higher Education.  “Special Handling” is the term of art given to the regulatory scheme which allows colleges who have advertised and already recruited a faculty member pursuant to a “competitive recruitment process” to file a PERM and begin the process of Lawful Permanent Residency sponsorship for that individual, without having to re-advertise and go through the cumbersome recruitment process to which all other organizations are subject.  Provided that at least one advertisement for the original position was placed in a “National Professional Journal” (eg., The Chronicle of Higher Education), the college can file a PERM without re-advertising.  However, in order to take advantage of this provision, the regulations require that the PERM be filed within 18 months of the employees “selection date” (typically considered to be the date on the original Offer Letter).  Moreover, the Employer is still subject to many of the remaining regulatory constraints, including the requirement that it obtain a Prevailing Wage Determination from the NPWC before filing.

With PERM Prevailing Wages currently taking anything upward of 4 months, colleges would be well advised to make the decision on sponsorship as soon as possible for those faculty membership that were hired for this academic year if they want to avoid re-advertising and re-recruiting.  It is likely that many of those individuals received Offer Letters as far back as January 2011.  This means that the window to file Special Handling PERMs will begin to close in July 2012.  That may seem like its still far off.  Given my experience representing colleges, however, and the time that it typically takes for such decisions to be made and then communicated to the Legal Affairs office, this deadline is actually just around the corner.

Employment-Based Visa Quota Exhausted For FY2011

For those of you who have been wondering why the processing of your employment-based Green Cards has been taking so long, USCIS has finally given an explanation.  As of September 15, 2011 the agency announced that it had halted processing of all employment-based visas because the quota was exhausted for FY 2011.  Processing will resume on October 1, 2011 based upon the visa quota of FY 2012.

Hope for Gay Partners of Nonimmigrant Visa Holders

Back in March 2011 I lamented the Obama Administration’s announcement that it would continue to enforce the Defense of Marriage Act (DOMA) in the immigration context, thereby precluding gay spouses from petitioning for the immigration of their partners. Although this still holds true, on August 17, 2011 USCIS confirmed that it would now support the application for B-2 (tourist) status by cohabiting partners and other household members of principal non-immigrants.  This means that if you are a “household member” of an F-1 student, H-1B visa holder etc., you may be eligible for tourist status in the US for the duration of your partner’s authorized stay in the US.  Indeed, this policy would apply to all members of the visa-holder’s “nuclear” family, including possibly parents, heterosexual partners and even possibly parents.  Unfortunately, this “benevolence” has not yet been extended to cover petitions for Lawful Permanent Residency (“Green Card”) status, but it is a step in the right direction.

For guidance on whether you might qualify as a “household member” in this context, contact my office today at (914) 358-1400 or Click here to email me at karyn.schiller@kslawoffices.com

USCIS Raises the Bar for EB-1 Petitions

This past year has seen a dramatic change in the adjudication process for EB-1 Petitions (for Aliens of Extraordinary Ability, Outstanding Professors/Researchers or Aliens of Exceptional Ability).  And not for the better.  For not only has USCIS raised the bar on these applications, but more significantly it has thrown out well-established standards of adjudication in favor or arbitrary and impossible-to-define criteria.  None of this bodes well for the outstanding individuals and academics that this country ought to be encouraging to immigrate to the US.

In order to put this discussion in context a brief rundown on EB-1 Petitions will be helpful.  Although EB-1 covers more than just Outstanding Professors and Researchers, for the sake of brevity I have included  a brief outline of the regulatory framework that governs these EB-1 petitions.  8 CFR 204.5(i)(3)(i) provides that an Outstanding Professor/Researcher is one who:

  1. Is recognized internationally as outstanding in a specific academic area;
  2. Has at least 3 years experience teaching or research in the relevant field; and
  3. Is seeking entry to the US for a tenure track position, a comparable position at a University or Institute of Higher Education to conduct research or with a private employer if it employs at least 3 persons full-time in research activities and has achieved documented accomplishments in the field.

Satisfying steps 2 and 3 is relatively straightforward.  Step 1, however is where the fun and games begin and where USCIS has now made matters even more complicated.

Prior to the recent decision in Kazarian v USCIS, 596 F.3d 1115, (9 Cir. 2010), proof of international recognition as outstanding in the field required documentation of at least two of the following:

  1. Receipt of a major prize or award for outstanding achievement;
  2. Membership in a professional association that requires outstanding achievement;
  3. Published material in professional publications written by others about your work
  4. Evidence of participation (either individually or on a panel) as a judge of the work of others in the same or allied academic field;
  5. Evidence of your original work or scholarly research contributions to the field;
  6. Evidence of your authorship of scholarly books or articles in the field

Over time each of these criteria developed its own nuances, and putting together a successful petition has always required enormous attention to detail as well as experience as to what evidence “counts” and would be considered by USCIS to have  satisfied the standard.  Nevertheless, Petitions filed on  behalf of individuals who could adequately document at least two of these criteria were typically approved without too much trouble – and I am proud to state that this office had a 100% success rate in this area.

Recently, this clear standard was discarded in favor of ambiguity.  USCIS is now undertaking a two-step approach to these petitions, as per the court decision in Kazarian (and in my opinion, well beyond the bounds of that case).  The Investigating Officer must now first evaluate all the evidence on an individual basis in order to determine if it meets at least two of the above criteria, and then, “must consider all of the evidence in totality in making the final merits decision.”.  Absolutely no guidance is provided to either the IO or the practitioner as to what, if any metrics will be applied to this “final merits decision”, and what criteria should be considered other than the individual opinion of the evaluator.  All we know is that the IO must evaluate all the proffered evidence “to see if, cummulatively, it proves by a preponderance of the evidence that the applicant or beneficiary is at the very top of his or her field of endeavor.”

And this takes us back to square one. The very purpose of the six enumerated criteria was to provide a standardized matrix by which the outstanding ability of the applicant could be measured.  Now, that measurement has been relegated to a necessary but insufficient tool,  and can be undermined by completely unknown, subjective and hard-to-refute criteria.  USCIS can now hang its hat on that amorphous “final merits determination” to deny any petition that it deems not “extraordinary” or “outstanding”, despite evidence to the contrary.

So much for encouraging the immigration of individuals of extraordinary ability!

    Is Your Criminal History Preventing You From Getting Your Green Card? Maybe Not Anymore…

    Just last year the Supreme Court ruled in Padilla v. Kentucky, 559 U.S. __,  130 S. Ct. 1473 (2010) that a criminal defendant must be warned of the danger that a guilty plea could result in his/her deportation from the US.  The Court found that if the defendant’s criminal lawyer fails to advise his/her client of that risk, this is tantamount to ineffective assistance of counsel, in violation of the 6th Amendment.  In practice, after Padilla, a lawyer’s failure to warn his/her client of the immigration risks can render that plea invalid.

    I get calls all the time from prospective clients who were advised by their criminal defense lawyer to plead guilty, usually because it helped them avoid jail time and was sold as “the best deal under the circumstances”.  Not so much.  Sometimes years later, these clients are shocked when their application for Adjustment of Status, or even TPS is denied based upon that plea.  Again and again I hear that “I never would have agreed to plead guilty if I had known that this meant I would never be eligible for a Green Card.”  Some clients find themselves in an even worse situation when they plead guilty and then are immediately served with a Notice to Appear for deportation proceedings.  So what does the Padilla case mean for you and can it help you?

    Although each and every case turns on its own specific facts, it is highly likely that if you plead guilty to a criminal offense and were not advised that it could result in your deportation that The Law Offices of Karyn Schiller may be able to help you.  In many states it is not yet clear if courts will allow Padilla to be applied retroactively.  In other words, it is possible that if you plead guilty many years ago, it may be too late for you.  But maybe not.  It may be possible to successfully move the Criminal Court to vacate your conviction and thereafter, to take care of the immigration consequences of that plea.  Not all cases will benefit from Padilla, but what do you have to lose?  Call Attorney Karyn Schiller today to see if you can get another chance.

    The Law Offices of Karyn Schiller in White Plains and New York City provides each and every one of its clients with personal, professional attention.  Call (914) 358-1400 to set up a free consultation with Attorney Karyn Schiller, or just Click here.  Someone will call you back to schedule your free consultation.

    Temporary Protected Status (TPS) – What You Don’t Know Can Hurt You

    After the January 12, 2010 earthquake in Haiti, the US Government designated Haiti as a country experiencing “extraordinary and temporary conditions” that prevent its nationals from returning to the country safely.  Consequently, Haitian nationals are eligible to apply for Temporary Protected Status in the US, in  order to avoid removal and to obtain Employment Authorization.

    As usual, however, the devil is always in the details.  Haitians who have previously been arrested for a crime should know that even relatively minor past brushes with the criminal law could render them ineligible for TPS and could lead not only to a denial of their application for TPS but possibly even to removal/deportation from the country.  And the standard is a tough one –

    TPS may not be granted to anyone who has been:

    1. convicted of any felony here in the United States.  The regulations define a felony for this purpose as any crime “punishable by imprisonment for a term of more than one year, regardless of the term actually served.”
    2. convicted of 2 or more misdemeanors here in the United States.  The regulations define a misdemeanor for this purpose as any crime “punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served.”  The terms also includes crimes punishable by imprisonment for longer than one year but that are defined by the State as a misdemeanor, provided that the sentence actually imposed in one year or less.  On the other hand the regulations specifically exclude from this definition crimes that are punishable for a maximum term of 5 days or less. Fortunately for New Yorkers, the Department of Homeland Security has recently instructed its staff that certain no-criminal violations should not be considered disqualifying misdemeanors even where the maximum potential sentenced exceeded five days and the disposition involved a “beyond a reasonable doubt” standard of proof, because to do otherwise would “be in tension with the humanitarian purpose of the TPS program and would lead to incongruous results.”  It is not clear yet whether DHS will apply this reasoning to similar non-criminal dispositions in other states.  But to be on the safe side, if you have had any contact with the criminal law, however slight, contact an attorney who can help ensure that your application for TPS does not end in deportation.
    3. convicted of or admitted a single misdemeanor or lesser violation of law that involves a controlled substance or crime involving moral turpitude
    4. conduct that would otherwise render an alien inadmissible to the US, such as drug addiciton, prostitution, falsely claiming US citizenship, immigration fraud etc.
    5. convicted of or engaged in conduct that is a bar to asylum, such as participating in the persecution of another person or having been convicted of a “particularly serious crime” nonpolitical crime outside the US.

    Clients who have consulted me about TPS have sometimes been surprised to hear that conduct that they had long since forgotten about or thought was irrelevant could possibly come back to haunt them on their application for TPS.  So don’t take a chance.  If you have had any encounter with the Law, no matter how minor, Click here to contact Karyn Schiller today for a free consultation.

    Celebrations are Premature for Same-Sex Couples

    It seems that my posting of yesterday was too good to be true.  After barely 24 hours the Obama Administration has backpedaled on its statement that it would instruct the Attorney General to no longer defend cases that implicate Section 3 of DOMA.  Too bad for the thousands and thousands of gay couples who cannot petition USCIS for the right to live in the US with their loved ones, free of the fear of deportation.  The Law Offices of Karyn Schiller will continue to use all other creative means available to help gay couples.  Call Immigration Attorney Karyn Schiller at 914 3581400 today.

    Progress for Same-Sex Couples?

    The recent announcement by the Obama Administration that it has instructed the Attorney General to cease defending Article 3 of the Defense of Marriage Act (DOMA), which defines marriage for Federal purposes as between a man and a woman, has already prompted USCIS to announce that it is placing all same-sex cases on hold.  This is good news  for same-sex spouses of US citizens who are in removal proceedings, because their cases will now be adjourned pending clarification.  And for those US citizens who have pending I-130 Marriage Petitions as well as Adjustment of Status(Green Card) Applications for their same-sex spouses, these cases will not be denied, but placed on hold for now.  And no denial means no Notice to Appear in front of an Immigration Judge for removal proceedings.

    For same-sex couples who are sick of waiting, this might be the time to consider filing a petition on behalf of your spouse.  The Law Offices of Karyn Schiller has provided legal guidance to same-sex couples who have been denied the same right as their straight peers, helping them find creative, legal ways to remain in the country with their loved ones.  For the first time in years, I am cautiously optimistic that this might be the start of a new era, in which gay couples will have the same right to  live out their lives together without fear of deportation.

    Removals and Deportations on the Rise

    Recently we have noticed a significant uptick in the number of clients calling the Westchester office for help with removal proceedings.  It seems that Immigration Customs & Enforcement (ICE) has a lot of time on its hands and is using it!  If you have a pending hearing, The Law Offices of Karyn Schiller in White Plains is well-versed in helping you find the best possible solution.  Many undocumented aliens automatically assume that their best hope is to get Voluntary Departure and do not realize that there may be another way out.  It takes a skilled immigration attorney to recognize any procedural or service deficiencies that might help you avoid immediate departure.  And where, for example, you have an approved Immigrant Petition and your priority date is nearly current, the Law Offices of Karyn Schiller could help you secure an adjournment that could allow you to ultimately adjust your status in the United States and avoid having to ever leave.  So Click here to email Westchester Immigration Attorney Karyn Schiller, or call  914 358-1400 now to schedule your free 20-minute consultation.  A good immigration lawyer may be expensive.  But a bad immigration lawyer can cost a fortune!

    Adoption – The Immigration Quandary

    For the third time in as many months I was approached at the White Plains office by a new client who had already completed the adoption of an infant abroad and was inquiring about how to get legal, immigrant status for that infant. Oy. If only I had been consulted prior to rather than after the adoption was finalized. Finalizing your adoption (or in some instances, even taking custody of the child) without consulting an immigration lawyer beforehand can spell disaster for that child’s prospects of acquiring Lawful Permanent Residency or citizenship here in the US.

    Approximately 2 years ago the United States ratified the Hague Convention on the Adoption of children. As of that date, adoptions from countries that are signatories to the Convention (see here for the list) MUST be done in accordance with a complicated procedure that requires several steps be taken and approved BEFORE you take custody of the child. The ramifications of a non-compliant adoption from a Convention country can be devastating and could even require annulling or canceling the adoption and starting over again. Not something that any parent who has gone through the arduous and emotionally wrenching procedure once will ever want to do again, for the same child.

    So if you are thinking of adopting a child from a Convention or non-Convention country, please contact me first. You will save yourself much time, money and upheaval if you are guided through the process by a competent immigration attorney who is familiar with the process. Relying upon the Adoption Agency or Authority in the child’s country of origin about compliance with US Immigration Law is almost always a recipe for disaster. Kind of like relying upon your Doctor for advice about buying a home.

    And if you have already begun the adoption process (or completed it), Click here to schedule your free 20-minute consultation, or call my office immediately at 914 358-1400 (Westchester) or 212 431-1188 (New York City). It may make all the difference in the world to your child’s chances for legal status in the US. Westchester Immigration  Attorney Karyn Schiller has the experience and professional dedication you – and your child – need.

    Pro Bono Success in Record Time

    I am pleased and proud to report that last week this office obtained  Lawful Permanent Residency status (“Green Cards”) for a Jewish Studies teacher at a Jewish Day School and his spouse, after years of struggling with other counsel.  The couple arrived in the US in 2004 and had spent thousands of dollars and many sleepless nights in their bid to achieve legal status.  When I met them they were willing to do almost anything – anything legal, that is – to advance their case.

    Approximately 2 months ago the I-360 petition filed years ago by the teacher was approved and I offered to do the Adjustment of Status pro bono. Initially things were not looking promising.   The Religious visa (non-minister) category upon which the application was based was set to expire at the end of September, and there was no way to know if Congress would vote for an extension or not.  This meant that unless the Adjustment of Status was actually approved by September 30, the entire process would become irrelevant after all this time and money!  So time was of the essence.

    Without delay I worked with the clients late into the night gathering all the relevant documents and completing all of the paperwork.  As a result, we were able to send everything off in record time.  A couple of weeks later we received a Request for Further Evidence from USCIS, asking for proof that the spouse had maintained lawful non-immigrant status for the entire duration of her stay in the US.  This material (at least for the years 2004 – 2007) should have been submitted together with a previous Adjustment of Status application filed back in 2007 by another attorney.  However, when I contacted that attorney I learned that these documents had never been submitted.  So I had my client frantically search for every old paystub, bank statement and other document that could help and about 48 hours later we were able to submit conclusive evidence of an unbroken chain of legal status for all these years.  Even though a response was not due until October 17 I felt that if we acted speedily we might just get USCIS to adjudicate this case before the sunset provision kicked in on September 30th.

    Indeed, the effort paid off.  The “Green Cards” arrived about 3 weeks later and one very happy and relieved couple will now be able to relax – and go back to their home country to visit for the first time in more than 5 years.

    And the lesson for my clients – save EVERYTHING!  You never know when that bank statement or paystub from ages ago will rescue your petition.  When in doubt, do not discard.

    Click here to contact Immigration Attorney Karyn Schiller

    To B or Not to B

    Over the course of the summer a couple of new clients presented with a similar issue – one had previously entered the country in B-1 status, stayed for 6 months and since leaving had been denied an L-1 visa because the Consular Officer suspected that she had violated the terms of her B-1 visa; and the other was waiting abroad for a non-immigrant visa and considering entering the country on a B-1 visa in the interim because of the delay in processing his underlying petition. Both cases reminded me of how easy it was to use and abuse the lowly B-1 visa and how severe the potential repercussions can be.

    A B-1 visa is a temporary non-immigrant visa intended to allow an individual to enter the country to conduct business on a temporary basis.  A full list of activities that are appropriate for a B-1 visa is found in Chapter 9 of the Foreign Affairs Manual and includes the following:

    • attending, lecturing or speaking at a conference
    • undertaking independent research
    • participating in a training program
    • negotiating contracts
    • consulting with business associates
    • attending Board of Directors meetings of a US corporation
    • seeking investment for a business venture

    Sometimes it is easier to define what is NOT  allowed on a B visa, namely, “the performance of skilled or unskilled labor”.  Thus, the regulations specifically prohibit employment on a B visa.  However, there can be a fine line between activities that constitute appropriate business activities and those that are not appropriate on a B visa.  When in doubt, I strongly advise seeking legal counsel to avoid unintentionally violating the terms of your visa.  The consequences of even an innocent violation can be quite severe.  For example, when arriving at the US point of entry the Customs and Border Patrol officer will routinely question individuals about the purpose of their visit to the US. If the officer suspects that you intend to engage in activities that cross the line into skilled labor territory, they have the right to deny you entry and possibly even seek your expedited removal from the US.

    There is no specific limit on how long you can  be in the US  on a B-1 visa, but the length of time must be consistent with the purpose of your visit.  This often poses a trap for the unsuspecting.  Typically a B-1 visa holder is given an I-94 (the white card that is stapled to your passport) that permits him/her to remain in the US for up to 6 months.  In my experience, however, it is the rare business purpose that can justify a visit for that long.  And so it was that the first client referred to above found her way to me this summer after having been denied an L-1 visa after she had previously spent 6 months in the US on a B-1 visa, conducting business with the same company that was now sponsoring her for the L-1.  I was not counsel on this case when the client first entered on the B-1 visa.  When I asked why a B-1 had ever been used for such a long stay the client explained that the previous attorney had advised him  it was much easier to get a B-1 and as long as the Beneficiary left before the status expired there would not be a problem.  Not so.  When she went for her interview at the Consul for her L-1 visa the Officer grilled the Beneficiary extensively on what she had done during her 6 months in the US and concluded that she had engaged in activities that were inconsistent with her status.  For this reason he denied the L-1. The lesson here is that although a B-1 visa might have been initially cheaper and easier to obtain than an H or L, these gains can be be short-lived. It is my intention to refile this case and include extensive documentation to prove that the Beneficiary did not engage in any unlawful employment during her B-1 stay.  It goes without saying, however, that the bar is much higher once an application has already been denied.

    In the second case, the client had applied for an R-1 visa abroad and the US institution that was to employ him was getting increasingly concerned at the delay – new rules promulgated after we had already applied significantly increased the wait-time for R visas.   With much hesitation I agreed that the Beneficiary could enter the US on a B visa and that we would apply for a change of status to an H-1B visa shortly thereafter.  Obviously the  Beneficiary could not start working until a change of status was approved.  Nevertheless, I was concerned that USCIS might deny the subsequent H-1B petition on the grounds that at the time of entry to the US the Beneficiary had already formed the intent to apply for an H-1B visa, thereby violating the terms of the B-1.   I instructed the Beneficiary to be completely upfront with the CBP officer upon arrival and disclose all the facts of the case including the pending R visa application.  As it turned out he breezed through passport control without any questions.  When we filed the H-1B petition a week or so later it was with full disclosure.  We included the receipt notice from the R-1 visa and explained that the delay had caused the change in plans and that although the Beneficiary had no intentions of working until the H-1B was approved,  circumstances had made it impossible for him to continue waiting abroad.  Naturally we were very grateful when the H-1B was granted in short order and a change of status approved, thereby avoiding the necessity to return home and obtain the new visa.

    Both cases served as a reminder to me of the pitfalls of taking the B-1 visa for granted.  If you are considering bringing in a professional from abroad or you, yourself need to conduct business in the US, please contact me to confirm that a B-1 is the appropriate visa.  It might save you time and money in the long-term.

    Click here to contact Westchester Immigration Attorney Karyn Schiller

    Thanks to iCert H-1B Filings are Taking Longer than Ever

    Thanks to iCert, the new “and improved” online system for filing Labor Condition Applications, H-1B applications are now taking longer than ever.  The new system was rolled out a few months ago and  its use became mandatory as of July 1, 2009.   As many of you already know, an H-1B petition can only be filed once a Certified LCA has been granted.  In my own experience the old system worked well and Certifications were almost always instantaneous.  No more.  Under iCert, adjudication of LCA’s are taking anything from 1 to 3 weeks.  Further, many more applications are being subjected to additional scrutiny; thereby causing even further delay.  This poses a huge problem for my clients at Institutes of Higher Education.  The immediate effect for these clients is that they cannot rely upon their last-minute hires receiving visas in time for the start of the academic year in September.

    The moral of the story – this is yet another example of the immigration system “fixing something that is not broken”.  To all my academic clients, please take heed and be sure to begin the process of obtaining immigration authorization for your new hires as early as possible.

    H-1B visas. What a Difference a Year – and TARP, Make…

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    On April 20, 2009 USCIS announced that it had received only 44,000 cap-subject petitions since the filing window opened on April 1.  For those who may have forgotten the bedlam of the past two years I will remind you that by this time last year USCIS was only begining to conduct a lottery among the 165,000 petitions that it had received.  And 2007 was not much better.

    Of course the current recession is the likely reason for this massive decline in the number of petitions.  But so are the new regulations that subject banks and other institutions who accept TARP money to highly onerous conditions before they can sponsor anyone for H-1B status.  These regulations define any institution that accepts TARP funds or  money purusant to Section 13 of the Federal Reserve Act as “H-1B” dependent.  As such, before they can file an H-1B petition these institutions must be willing and able to attest to:

    1.having taken good faith steps to recruit US workers for the open position;

    2. having offered the job to any US worker who applies and is equally or better qualified for the job;

    3. having not displaced any US worker employed within the period beginning 90 days prior to the H-1B filing and ending 90 days after the filing (direct displacement); and

    4. that it will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a US worker within that same 90 period (indirect displacement).

    These regulations have ostensibly vitiated the H-1B program for most financial institutions .  With thousands of unemployed bankers and other former employees of the financial services industry, any employer in that industry would be hard pressed to convince USCIS that a good faith effort failed to turn up a qualified US worker.

    Interestingly, the regulations exempt those alien employees who are already employed by these institutions in any other non-immigrant status.  Thus, any workers in the financial industry who are currently on OPT or TN status, for example, are still eligible for H-1B status without the employer having to demonstrate compliance with these enhanced standards.  I must confess that I am puzzled by this seemingly benevolent exemption.  The only possible explanation that I can think of is this:  The exemption constitutes a tacit admission by Congress of the importance of retaining US college-educated foreign talent, while avoiding the accusation that it is allowing any newly created professional jobs to be filled by foreign workers.  And since it is safe to assume that few jobs are likely to be created in the financial services industry anyway in the near future, Congress has effectively portrayed itself as protecting US jobs while still holding onto whatever foreign talent has been hired – and not fired – to date. If I am correct, let us hope that Congress will tackle comprehensive immigration reform with similar regard to the importance of retaining educated and qualified foreign talent.

    Regardless, to those employees who may have avoided filing an H-1B petition this year for fear of wasting time and money in a lottery, you still have time to file.

    The Dream Act

    If Congress has the courage to pass the bipartisan legislation proposed in the House and Senate on March 26, 2009 the Dream may well come true this year for millions of undocumented students in the United States.  These are the students who were brought into the United States as children and who have grown up thinking of themselves as American in all ways only to hit a brick wall once they graduate college and find that entry into the working world is effectively denied them.  Many have struggled through college even while working more than one job so as to pay tuition  and also contribute to the upkeep of their undocumented parents.  As hard as they try, however, they can never make the American Dream their own, because no matter how many degrees they earn, how bright and determined they maybe, they cannot work legally in this country.

    This legislation has been proposed on several occasions since its first introduction in 2001.  Although it has gained increasing support and is probably the least controversial of any immigration reform, the bill has been defeated on each occasion.  The version currently before the House would offer a path to legal residency for undocumented individuals who:

    1. were brought into the US before the age of 16

    2. are currently under the age of 30

    3. have lived in the United States for at least 5 years

    4. have graduated from High School or have a GED

    5. are of “good moral character”

    6. have attended college or enlist in the military for 2 years and receive an honorable discharge.

    On April 21, 2009 the College Board released a report entitled “Young Dreams on Hold: The College Dreams of Undocumented Students”.  The report lays out in graphic terms the terrible cost to these young adults who do everything “right” but are still denied the opportunity to become contributing members of our society.  Despite the well documented cost to these individuals as well as to our society as a whole, passage of this legislation is by no means a foregone conclusion. Although the House of  Representatives under the leadership of Nancy Pelosi will probably pass the bill with ease, the legislation may well stall in the Senate where the Democrats lack a fillibuster-proof majority.

    9th Circuit Holds the BIA Erred in Finding Expunged Conviction is a Bar to Relief

    The 9th Circuit ruling in Ramirez-Altamirano v Mukasey, is a welcome expansion of its earlier finding that State court defendants should not be treated more harshly than Federal court defendants when considering whether their rehabilitation from a criminal conviction could serve to nullify the immigration consequences of their conviction.

    Cancellation of Removal is a form of relief available to aliens who would otherwise be subject to removal from the country, who meet the following criteria:

    1. The alien must have been physically present in the US for a continuous period of not less than 10 years immediately preceding the date of his/her application for Cancellation of Removal;

    2. The alien must have been a person of good moral character;

    3. With certain limited exceptions, the alien must not have been convicted of a crime that would render him/her inadmissible under 8 USC Section 1182(a)(2) or deportable under 8 USC Section 1227(1)(2)-(3); and

    4. The alien must establish that removal would result in exceptional and extremely unusal hardship to the alien’s immediate US citizen or lawful permanent resident relatives.

    In this case the alien had been convicted of misdemeanor posession of drug paraphernalia under California state law. He was denied cancellation of removal based upon his failure to meet the 3rd criteria.  The Immigration Judge found that notwithstanding his rehabilitation pursuant to the relevant California statute and the fact that the charges were ultimately dismissed as a part of such rehabilitation, the  conviction for possession of drug paraphernalia retained its immigration consequences.   The BIA upheld this ruling pursuant to its general stance that “for immigration purposes a person continues to stand convicted of an offense notwithstanding a later expungement under a state’s rehabilitative statute.” Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002).

    On appeal, the 9th Circuit overturned this ruling.  The court referred to the fact that under the Federal First Offender Act (“FFOA”) defendants convicted of a first time offense in Federal Court could still be eligible for cancellation of removal, because that statute in effect defers a defendant’s conviction and allows for dismissal of the proceedings without entering a judgment of conviction where the defendant has succesfully completed a term of probation .  The court cited to its previous ruling that “the Equal Protection Clause requires a a parallel exception for similarly siuated defendants prosecuted in state court. Lujan Armendariz v. INS, 222 F.3d. 728 (9th Cir. 2000).  In other words, the test for whether a defendant’s rehabilitation under State law could serve to nullify the immigration consequences of the conviction was whether he/she would have been eligible for relief under the FFOA but for the fact that he/she had been prosecuted in State rather than Federal court.

    The 9th Circuit went on to reject the IJ’s finding that Lujan was distinguishable from this case because Lujan involved a conviction for drug posession whereas in the instant case Ramirez stood convicted of possessing drug paraphernalia, finding “no rational basis for treating individuals found guilty of posessing drug paraphernalia more harshly than those found guilty of possessing the actual drugs themselves.” Ramirez-Altamirano at 1231.

    Thus,  based upon the rationale of Lujan, the Court found thatRamirez-Altamirano’s conviction could not serve as a bar to cancellation of removal and remanded the case for further consideration.

    It remains to be seen whether this ruling will be followed in other circuits with similar rehabilitation statutes, and for which offences.

    Time is Running Out for Some Religious Workers

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    On February 4, 2009 USCIS announced a March 6, 2009 deadline for (non-minister) Religious Workers with an approved I-360 to adjust their status.  In other words, to all those Day School, Hebrew School and Sunday School teachers who are in possession of an approved I-360 –  you need to have filed your I-485 Applications to Adjust your Status … yesterday!  USCIS has announced that it will speed up the processing of these applications in view of the approaching deadline. However, anyone who has not already filed their applications is in serious danger of missing the deadline.  And unless the deadline is extended at the last minute, this could well mean that all of your time, money and effort until now to obtain a Green Card as a Religious Worker will have been for nothing.  My advice – if you haven’t filed yet, call us IMMEDIATELY.

    A New Sherrif in Town

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    On January 21 President Obama instructed all Government Agencies of the Executive Branch that “in the face of doubt, openness should prevail.”  It remains to be seen, therefore, whether we can expect to see a decrease in the response times for Freedom of Information Requests  that we routinely submit to USCIS on behalf of our clients. These “FOIA” requests are a critical part of our representation of certain clients. Typically we wait anything from 6 to 12 months to receive these documents from USCIS, which only serves to further delay the process of obtaining Residency on behalf of these clients. We are optimistic, however, that this will be one of a long list of positive changes in the way that we have come to practise immigration law that we may see in the near future from the Obama administration. Here’s hoping…

    Immigration Law for Academic Faculty in 2009: What You Need to Know Right Now

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    Immigration rules are a moving target and 2009 is shaping up to be one of the toughest years yet. Want to know more? Download my FREE article “Immigration Law for Academic Faculty in 2009: What you need to know right now”.