Congress has failed to enact immigration reform since the Presidential Election, almost two years. The Director of Immigration has been directed to extend benefits and protections to undocumented immigrants under the powers of the Executive Branch without relying on Congress now. These powers may be used to aid family unity, to foster economic growth and to relieve immigrants from uncertainty and hardship in having to return home by granting them the right to Adjustment of Status.

TEMPORARY PROTECTED STATUS (TPS)

Salvadorans, Haitians, Hondurans and Nicaraguans who have been granted TPS now are ineligible to adjust to permanent residence. The new executive proposed Order would enable some 400,000 undocumented nationals of these countries to obtain permanent residence here without returning home.
PAROLE IN PLACE

The Immigration Service has legal authority to parole immigrants on a humanitarian basis. Any alien present in the U.S. even though not documented, may be deemed an applicant for admission. This privilege has been seldom granted before. The Immigration Service has decided to expand this humanitarian program by allowing “qualified applicants” to be excused from returning to their country. The President has this power under parole. The program is called “Parole in Place”, PIP. Last month PIP qualified U.S. military dependents to receive its benefit to preserve family unity and to avoid the need to depart for families of the military.

Another group the Immigration Service is considering for PIP are minors who entered without inspection. Under consideration are immigrants who have lived in the U.S. for many years, the elderly, and the caretakers of children who are disabled.

EXTREME HARDSHIP

Applicants who entered without documents or overstayed who have applied for a Waiver of Inadmissability have been treated harshly by Consulates. Even though such applicants have U.S. spouses, U.S. children and/or U.S. parents, the Consulates have been unsympathetic and stringent in their interpretation of extreme hardship for U.S. family members who suffer by their family member’s exclusion.

The Executive Branch now will lower this “hardship” bar to avoid long periods of separation from spouses, children and parents. By a lower standard of proof, many undocumented aliens would have less reason to fear and would come out of the closet to apply for immigration relief.
DEFERRAL ACTION

If the Immigration Service believes an undocumented alien’s removal is not in the public interest, the Service may grant indefinite deferred action. This would enable such immigrants to get work authorization, travel abroad, and live here. Relief may become available (ostensibly because Congress might change the law in future, even though no relief now exists.

The Governor created on May 5, 2010 a Special Immigrant Board of Pardons to review cases of immigrants threatened with deportation for minor or old crimes.

What can be done? An interrupted entrant who has endured this inconvenience has access to the Department of Homeland Security’s Traveler Redress Inquiry Program, DHS – TRIPS.   To clear your record, on the internet go to:  www.dhs.gov/files/programs/gc_1169676919316.shtm.  Often the DHS has old records of someone and these records are not pertinent to the entrant’s present lawful status.

Recently a German-British dual national who came with a Visa Waiver was picked up by Immigration officers at his home and was taken away in handcuffs.  He learned he was deportable without having to have a hearing because he inadvertently overstayed his visa because he had filed his application for adjustment of status without enclosing his wife’s alien relative petition, his wife being the American citizen petitioner. An Immigration Judge could not help him because the Third Circuit Court had just held that even though he had entered legally, since he had exceeded his 90 day stay allowance, he was summarily deportable.   An article about the misfortunes of this couple was published in The New York Times indicating the harshness of this rule that had created a furor.  As a result, although the Immigration officers had followed the letter of the law according to the Third Circuit, the Immigration office released the alien into the arms of his wife, and he was able to correct the mistake in his application.

However, this case points out that 6 Circuits in the country including New York allow visa waiver holders to obtain permanent residence through their U.S. spouses even if they overstay, whereas the other 6 Circuits including New Jersey, Pennsylvania, Delaware, and the Virgin Islands, hold they may not.

The investment must be at risk for profit and be a new enterprise.   If the investment is in an already existing business, then the company will have to show it has expanded the company bought into by the investor’s input, namely, by showing that the existing company’s net worth has increased by 40% as a result of the new investment or that the number of employee positions has increased by 40% as a result of the new investment.

The investment may be in cash, equipment, inventory, tangible property or securities.  A loan to the company is not satisfactory.  The investment needs to be at risk, and a loan can be made to be redeemable whenever the lender wishes.

The value of the equipment, inventory, etc. must be determined by market value.   The foreign investor may not spread out the investment in several enterprises; it must all be put into one business.  Lastly, the investor may be asked to prove the legitimate source of the money invested.

EMPLOYMENT FOR 10 FULL TIME POSITIONS:

a) the positions created must be full time.  The company may change individual employees in these various new positions as needed as long as the newly created  positions themselves remain at least at ten;

b) the workers filling these positions may not include the investor’s family members or non-authorized to work persons;

c) if the business invested in has had net losses for one or two years exceeding 20% of its net worth, then the business will be excused from the 10 new employee requirement; it would then be enough to maintain from the existing staff at least 10 full time jobs.

Within 90 days of the 2nd anniversary, the investor may petition to remove the condition and make the residence permanent.

An investor pilot program has been created that allows investors through Regional Centers to be relieved of the 10 position requirement by the investor’s promotion of economic growth in the region through exports or increasing regional productivity and by directly or indirectly creating new jobs or increasing local capital investment as approved by the Regional Centers. If the new business of the investor has had a positive economic impact as confirmed by the Regional Centers and has created jobs beyond the investor’s business itself, then the investor may be excused by the Regional Center of providing 10 new employee positions through the investor’s new business.

China’s human rights record has severely deteriorated in respect to religious tolerance in the past year according to a recent finding of the Department of State.  Tibetans who seek to observe their religious rites are tortured and punished if they try to escape from Tibet.  The Falun Gong followers who adhere to Buddhist, Taoist or Confucian principles when apprehended are consigned to labor camps that are punishing and where many die.

People who participated in underground family churches have been harassed or even arrested by police.

If you are a Chinese national or a member of a group described here and if you have endured persecution as a member of such a group within one year of your arrival in the U.S. you may be entitled to apply for asylum.  Or if you have become a member of a group such as the Falun Gong or the Chinese Democratic Party and you have actively protested China’s restrictive policies and your participation has come to the attention of the Chinese Government, you may also be entitled to apply for asylum.

If you wish to consult with us, please call us at 212-944-9420 ext 14.  We have Chinese and English speakers available.

The H-1B applicant enters the U.S. as a specialty worker or professional for a temporary time period unlike the job creation investors’ visas that ultimately become permanent residents.  Dual intent is allowed for the H-1B as it is not necessary to prove an address abroad.  The H-1B visa holder may have both a short term intent to leave the U.S. after the temporary authorization expires and also a long term intent to return as a permanent resident when the quota immigrant category becomes available.   For example, a computer programmer who has come to the U.S. as an H-1 for a limited time, either for 3 or 6 years, may also have a permanent residence application pending at the same time.   The permanent residence quota category may require a wait of several years depending on the country of nationality.  If the quota is not current at the time the last extension has expired, the H-1B holder would have to return to his/her country to await the grant of permanent residence through quota availability   This may then entail a wait of  years abroad.   The desire on the part of the H-1B candidate for permanent residence does not disqualify the H-1B candidate from having H-1B status because of the dual intent doctrine.   Even though for example a permanent resident visa is pending for an applicant, he/she may still apply for an extension of the H, L, E-1 and E-2, and O and P categories.

An H-1B visa is a work authorization for a person in a specialty occupation or a profession; or a fashion model of distinguished merit and ability who is coming temporarily to the U.S.    A baccalaureate degree from a university or its equivalent is the minimum requirement.   A Labor Condition application must be filed, proving that the applicant will receive the prevailing wage for the specialty occupation in the area he/she will work in the U.S.  Sixty Five Thousand H-1B visas are available annually, with an additional 20,000 for applicants

who have graduated from an American University with a level of education equivalent to a Master’s Degree or higher.   The H-1B holder can receive up to 6 years of authorized stay.   If the H-1B holder resides fewer than 6 months of the year in the U.S. annually, he/she may be extended in the H-1B status indefinitely.

If an H-1B holder has applied for permanent residence through a Labor Certification and a Preference and 365 days have elapsed since the filing of the Labor Certification, the H-1B’s status may be extended in one year increments until permanent residence is granted.

The H-1B status holder who is in status may change companies at will and may start to work for the new employer as soon as the new application is filed with the Immigration Service.  It is not necessary to wait until the application is approved.

H-1B status requires a university degree or its equivalent, although if an applicant is short of the full degree,  work experience of increasing responsibility for 3 years of experience have been held to be the equivalent of one year of university.   An accredited evaluation company may  estimate the equivalence of education and experience to evaluate if the candidate has the equivalent of a university degree.

The H-1B status requires a theoretical and practical application of a highly specialized knowledge and attainment of a university degree or its equivalent in the specific field for which the candidate is seeking the position being appraised by the Immigration Service.

PHYSICAL PRESENCE

Proof must be adduced of 10 years of continuous presence in the U.S.  This proof may consist of leases during the 10 year period, filed tax returns, job evidence, proof of births of children, marriage or other vital statistics, bills and/or receipts for TV, electricity or telephone, witnesses who have personal knowledge and a bank account, just as examples.

GOOD MORAL CHARACTER

The absence of the commission of a crime of moral turpitude or of an aggravated felony, would indicate good moral character.  Petty offenses would not indicate a bad character but a conviction for domestic violence would.  Witnesses may testify as to the good character traits of the applicant which would be effective as well in showing the extreme hardship if the applicant were required to leave for a U.S. spouse, child or parent.

EXCEPTIONAL AND EXTREMELY UNUSUAL HARDSHIP

To prove a case for cancellation an applicant must demonstrate that a spouse, child or parent would suffer hardship that is substantially beyond that which would normally occur to a spouse, child or parent if their immediate relative were deported.  Such factors as the following may be introduced as proof:

1.  that the alien facing deportation has been gainfully employed and is the sole support for his wife and children;

2.  the importance of the alien’s work to his/her employer;

3.  the emotional dependence of older parents on the applicant, as well as financial dependence;

4.   the emotional inability of a child to go with his/her alien deported parent because of  close ties to the U.S. of the citizen or permanent resident child, especially children who are of school age. The Courts have held that the proof must be compelling.  As an example we have been successful in a case of a 12 year old child who suffered nightmares over the prospect of departure from the U.S., and who suffered a paralysis in her ability in succeeding in school because of the prospect of a separation from her close friends and schoolmates and her teachers, especially in light of the fact that prior to the institution of removal proceedings, the child had excelled in school and had been popular with her classmates and friends.

5.  Other important factors to be considered include:

a) family ties in the U.S. and abroad;

b) length of residence in the U.S.;

c) the health of the deportable alien and his immediate family members;

d) the political and economic conditions in the country of return;

e) the possibility of other means of adjusting status in the U.S. by the deportable alien;

f) the deportable alien and his/her immediate family members’ involvement and position in the community, and

g) the deportable alien’s immigration history.

An aged parent who is solely dependent for support, or a child with a serious health

problem, or a child with special needs in school are issues to be considered by the Immigration

Judge.   All hardship factors are to be considered in the aggregate in assessing exceptional

and extremely unusual hardship.

BATTERED SPOUSE, CHILD OR PARENT

A spouse, child or parent who has been the victim of extreme cruelty by a U.S. citizen or permanent resident may qualify for Cancellation of Removal if the applicant has been present in the U.S. for at least 3 years and the applicant has been a person of good moral character during these three years.  Proof must b e presented that the applicant would suffer extreme hardship or to his/her child or parent.

The new administration has now left the door ajar for persons who have suffered domestic abuse abroad by allowing these victims to apply for asylum in the U.S.   In many countries, in Latin America, Africa and Asia, these victims may now be considered a persecuted social group by our government, and thereby come under the protection of our asylum laws.   These abused persons often are not protected by local constabulary even if they move to other parts of their own country.  Local authorities often take the approach that these are private matters, and the authorities refuse to take cognizance of their humane obligations under international law.  When these persecuted individuals flee their country and seek refuge here, the United States now recognizing that we as a matter of national pride consider ourselves as a haven for the oppressed, the encouraging change of attitude by the current administration, allows these persecuted persons to apply for asylum.

The previous government consistently rejected these claims, first because it did not believe that these victims were encompassed by our asylum laws in spite of the fact that these persons were afflicted by rape, sexual assault, and threats to life and limb, and second because the previous administration believed that we would be overwhelmed by such cases from all over the world.

The present administration has taken a different direction, namely, that in accord with our traditions of protecting the oppressed throughout the world that we would carefully consider these cases, and individually review them for conclusive proof of the abuse and in meritorious cases grant asylum.