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April 2010 Archives

EMPLOYMENT CREATION BY IMMIGRANT INVESTORS, FIFTH PREFERENCE, TO OBTAIN PERMANENT RESIDENCE

By creating a new commercial enterprise in the U.S., an investor may obtain conditional residence. The venture must fill no fewer than 10 full time newly created positions for U.S. citizens, permanent residents, or other persons with employment authorization. The investor needs to demonstrate management skills by hands-on oversight and active engagement in every aspect of the new business. At least $1,000,000 has to be invested unless the venture will be in a targeted employment area (where there is high unemployment) and then the investment need only be $500,000.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.

WORK AUTHORIZATION - HOW TO OBTAIN IT FROM THE IMMIGRATION SERVICE

Work authorization in the U.S. may be obtained in various ways, depending on an applicant’s skills, education, experience and financial worth. Alternatives are available according to your intentions and your proficiency in your work. If you want to come soon, then the fast track is by a non-immigrant (temporary) petition; the immigrant (permanent) visa takes more time and requires more patience. Following are choices for non-immigrant and immigrant visas.

CHINA – HUMAN RIGHTS?

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.
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.

H-1B - TEMPORARY WORKER A FAST TRACK TO COME TO THE U.S.

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.
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 applicantswho 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.

CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS

Entrants to the U.S. who came here more than 10 years ago, with or without a visa, and have remained in the U.S. continuously since coming, and who have a U.S. citizen or permanent resident spouse, child or parent, who would suffer extreme hardship if the entrant were required to leave, would be eligible to apply for the remedy of Cancellation of Removal and Adjustment of Status.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 HARDSHIPTo 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, andg) the deportable alien’s immigration history.An aged parent who is solely dependent for support, or a child with a serious healthproblem, or a child with special needs in school are issues to be considered by the ImmigrationJudge. All hardship factors are to be considered in the aggregate in assessing exceptionaland extremely unusual hardship.BATTERED SPOUSE, CHILD OR PARENTA 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.

ASYLUM FOR DOMESTIC ABUSE ABROAD

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.
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.

DEATH OF A U.S. CITIZEN PETITIONING PARENT

Even though a U.S. Petitioning Parent dies before an adult child obtains permanent
residence, still the child may now receive permanent residence if the petition had already been approved. A U.S. parent petition for an adult child, is normally approved forthwith. However, because of worldwide quota delays, the quota delay can take years to be completed. Over this lengthy time older parents would die, and their adult children would lose the benefit of permanent residence.
Now the rules have changed. The government may grant permanent residence to an adult child of a deceased U.S. parent if the petition has been approved. The government now has the right to grant permanent residence on concluding that the immediate family of the U.S. citizen parent would suffer hardship as a result of denying permanent residence to the adult child. Age, health, existing ties to the U.S. of the adult child are all elements that may be taken into account by the government for the sake of the immediate family of the deceased parent. Disruption to the family unit if the adult child is not admitted, the age, the health, the period of time spent in the U.S., the lack of a home, and even undue processing time delays, are all factors that may be considered by the government to enable an adult child of a U.S. citizen to become a permanent resident.
Even though a U.S. Petitioning Parent dies before an adult child obtains permanent residence, still the child may now receive permanent residence if the petition had already been approved. A U.S. parent petition for an adult child, is normally approved forthwith. However, because of worldwide quota delays, the quota delay can take years to be completed. Over this lengthy time older parents would die, and their adult children would lose the benefit of permanent residence.Now the rules have changed. The government may grant permanent residence to an adult child of a deceased U.S. parent if the petition has been approved. The government now has the right to grant permanent residence on concluding that the immediate family of the U.S. citizen parent would suffer hardship as a result of denying permanent residence to the adult child. Age, health, existing ties to the U.S. of the adult child are all elements that may be taken into account by the government for the sake of the immediate family of the deceased parent. Disruption to the family unit if the adult child is not admitted, the age, the health, the period of time spent in the U.S., the lack of a home, and even undue processing time delays, are all factors that may be considered by the government to enable an adult child of a U.S. citizen to become a permanent resident.

DEATH OF A U.S. CITIZEN SPOUSAL PETITIONER: WHAT IS THE FATE OF THE SURVIVING ALIEN SPOUSE AND CHILDREN?

Formerly if a U.S. citizen who petitioned for an alien spouse had died within the first two years of the marriage, the widow(er) and his/her children were shown the door. The government imposed a hidebound rule that revoked any and all alien relative petitions for spouses and their children if the petitioner had died within the first two years of the marriage. This stringent rule was covered by a smokescreen, namely, that it presented fraud. This policy was in fact nonsensical because it afforded no right to the surviving spouse to prove the good faith of the marriage. A widow(er) thus suffered a double loss: the untimely death of the U.S. citizen within the first two years of marriage, and the double whammy of being excluded from the country without exception.
Now the law has been changed to be more rational and sensible. The surviving alien spouse is allowed to prove the good faith of the marriage. Thus a deserving alien spouse and children who can demonstrate that the marriage can set up an abode in the U.S. and a home for the children, which the deceased U.S. citizen would have wished for.
Formerly if a U.S. citizen who petitioned for an alien spouse had died within the first two years of the marriage, the widow(er) and his/her children were shown the door. The government imposed a hidebound rule that revoked any and all alien relative petitions for spouses and their children if the petitioner had died within the first two years of the marriage. This stringent rule was covered by a smokescreen, namely, that it presented fraud. This policy was in fact nonsensical because it afforded no right to the surviving spouse to prove the good faith of the marriage. A widow(er) thus suffered a double loss: the untimely death of the U.S. citizen within the first two years of marriage, and the double whammy of being excluded from the country without exception.Now the law has been changed to be more rational and sensible. The surviving alien spouse is allowed to prove the good faith of the marriage. Thus a deserving alien spouse and children who can demonstrate that the marriage can set up an abode in the U.S. and a home for the children, which the deceased U.S. citizen would have wished for.
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