MAVNI Program – Citizenship Through the Military

The Military Accessions Vital to National Interest (MAVNI) is a small, exclusive program that allows foreign nationals to gain expedited citizenship in exchange for military service. Typically, all of the United States military branches require enlistees to be permanent residents of the United States, green card holders, but the MAVNI program allows certain non-immigrants with special health care and language skills to join the military and be eligible for U.S. citizenship without first obtaining a green card.

The program began as a pilot in 2009 and was amended in September of 2016 with additional security reviews and screenings. The additional security measures have effectively placed the MAVNI program on hold and have created uncertainty among future and current MAVNI enlistees about the program’s future.

Qualifications:

To qualify for the MAVNI program a foreign national, at the time of enlistment, must:

(1) Be a refugee, asylee, of temporary protected statutes, or be a member of one of the nonimmigrant categories (E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V);

(2) Have been in one of the above valid status for at least two years, however, it does not have to be the same category as the one held at the time of enlistment;

3) Not have a single absence of more than 90 days from the U.S. during that two year period; and

(4) Be a healthcare professional or expert in key languages.

The MAVNI program is open to individuals who have been granted deferred action by the Department of Homeland Security pursuant to the Deferred Action for Childhood Arrivals (DACA) process. Their applications will be reviewed on a case-by-case basis.

  1. Special Skills

To qualify for the MAVNI program a foreign national must be a member of the health care profession or be an expert in a key language. A healthcare applicant must:

(1) Fill medical specialties where the service has a shortfall;

(2) Meet all qualification criteria required for their medical specialty, and the criteria for foreign-trained Defense Department medical personnel recruited under other authorities;

(3) Demonstrate proficiency in English; and

(4) Commit to at least three years of active duty, or six years in the Selected Reserve.

Applicants who are an expert in a key language must:

(1) Possess specific language and culture capabilities in a language critical to the United States Defense Department (full list of languages here);

(2) Demonstrate a language proficiency;

(3) Meet all existing enlistment eligibility criteria; and

(4) Enlist for at least four years of active duty.

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Freedom of Information Act Request

A foreign national applying for a visa, a green card, or other immigration services may encounter delays or be denied if the U.S. immigration services rely on background information that the foreign national did not know existed. The Freedom of Information Act (FOIA) allows individuals to request information from federal agencies that may be critical to obtaining entrance into the United States. The U.S. government maintains all background information in an “A file,” which can usually be obtained in part or in its entirety with a FOIA request.

The FOIA allows any person, regardless of immigration status, to access information from a federal agency as long as he /she reasonably describes the records requested and submits the request in accordance with the agency’s rules. A person is defined as an individual, partnership, corporation, association, or public or private organization that is not a governmental agency. Therefore, an employer or attorney may request the information on a foreign national’s behalf as long as the third-party has the permission of the foreign national.

Before filing a FOIA case, the applicant should consider whether the information he/she requires is specific to them or general information about the agency. If the information is general, the agency may have proactively released the information on its website. Federal agencies are statutorily required to proactively disclose all final opinions and orders rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals. If an individual seeks additional information that is not proactively disclosed then he/she should consider submitting a FOIA request to the appropriate agency.

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International Entrepreneur Rule

The Entrepreneur Rule that was set to go into effect on July 17, 2017, has been delayed until March 18, 2018, to allow the Department of Homeland Security (DHS) an opportunity to review the rule in light of President Trump’s Executive Order 13767, “Border Security and Immigration Enforcement Improvements.” 

President Trump’s Executive Order 13767 requires federal agencies to review any procedures for granting parole and change any procedure that proposes a threat to the United States’ security. In consideration, the DHS is taking comments from the public in consideration of whether the rule should be finalized.

Unfortunately, there is a possibility that the Entrepreneur Rule never goes into effect and because the DHS decides the rule proposes an unlawful security risk in light of Trump’s executive order.  

On July 17, 2017, the international entrepreneur rule will take effect, which permits the Secretary of Homeland Security to grant parole admission on a case-by-case basis to immigrant entrepreneurs who will increase job growth and provide a significant public benefit to the United States. The goal of the international entrepreneur rule is to allow The Department of Homeland Security (DHS) to improve start-up success by increasing and enhancing entrepreneurship, innovation, and job creation.

For a start-up to qualify it must have been founded in the last five years, must have been founded in the United States, and must demonstrate a substantial potential for growth. In addition, only three immigrant entrepreneurs may receive parole admission per company. Applicants are only eligible if their company meets the above criteria. While each applicant is reviewed on a case-by-case basis, the international entrepreneur rule established general criteria for the DHS to consider.

General Criteria

The applicant entrepreneur must demonstrate that he/she has significant ownership of the company, at least 10%, possesses critical operational knowledge that would assist growth in the United States, and the company has received a large financial investment. To demonstrate financial liquidity the applicant’s start-up have received investments of $250,000 or more from U.S. investors or have received $100,000 or more in government grants.

If an applicant does not meet one of the above requirements, he/she may still be considered for parole admission if the entrepreneur can demonstrate his/her company will offer a significant public benefit. For example, the start-up will create jobs in the United States.

The DHS reviews all parole admission in the totality of the circumstances – in light of all the applicant’s information is there reasonable certainty the applicant will provide the United States with a significant public benefit. Included in the totality of circumstances are general immigration requirements, i.e. background check, possessing good moral character, passing medical examination.

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Financial Sponsorship Requirements in Family Based Immigration

Family sponsorship is one of the most common ways a foreign national can become a permanent resident, or receive a Green Card.  The United States allows U.S. citizens or permanent residents to sponsor family members that include children, parents, spouses and siblings – and bring them into the country.

For more information on the specific visas, please see my article on Path to U.S. Citizenship.

Obtaining a visa through family sponsorship will require the sponsoring family member to complete an affidavit of support, which is a declaration of intent to financially support the immigrant family member. An affidavit of support is required because the Immigration and Nationality Act grants the Attorney General the power to deny entrance into the United States if the individual “is likely at any time to become a public charge.”  In another context, a sponsoring employer may also be required to submit an affidavit of support for a foreign national if the sponsored foreign national, or the prospective employee, is related to the employer or holds a 5% or more in ownership interest in the entity that filed the visa petition.

Therefore, whether applying to come to the United States or if already here, converting a temporary visa into permanent resident status, a foreign national must demonstrate they will not become a public charge through the filing of an affidavit of support.

 What is a Public Charge?

A public charge is an individual who is unable to support himself or herself without financial support from the government in the form of public cash or an individual who is expected to need long-term care facilities.

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Path to U.S. Citizenship

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available.

The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship.

Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa.

Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted.

The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations.

<Gaining admittance to the US>:

Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

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H-1B for Nurses

Overview

Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position – typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree.

Recent Developments at USCIS

In 2002, legacy Immigration Naturalization Service (INS) issued a memorandum providing guidance on this issue and essentially stated that most RN positions would not qualify for an H-1B visa unless the petitioner can establish that the job offered requires at a minimum a college degree. Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum. The 2014 memo that was later finalized in yet another memo in 2015 discusses the changing industry for nurses and that employers now increasingly expect nurses to have a college degree; however, the adjudicatory standard that USCIS uses to review H-1B applications for nurses has remained essentially unchanged. Currently, the requirements of H-1B for nursing are as below: 

  • The position is a specialty occupation;
  • The nurse has a degree or equivalent pursuant to H-1B regulations;
  • The nurse has passed the foreign nurses exam (NCLEX-RN); and
  • The nurse has passed the state licensure.When an applicant is required to prove a lawful employment before obtaining the license from the state or local authority, and the license is required to practice the profession, USCIS will approve a one-year H-1B petition for the applicant to work on obtaining the license. However, the request to extend the H-1B visa will be denied if the applicant is ultimately unable to obtain the license. 

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Asylum Seekers

U.S. Asylum Law

U.S. asylum law is made up of several different legal authorities, including U.S. immigration statutes and regulations, federal case law and international treaties and conventions.  People who are outside of the United States may apply for refugee protection under the United Nations Protocol, to which U.S. is a signatory.  People who have arrived in the U.S. or are physically inside the country may apply for asylum protection.

In order to qualify for asylum protection, an individual must meet the basic definition of a refugee: [A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or wellfounded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion.

Persecution

What does it mean to be persecuted? The word itself is not specifically defined in the rules and regulations but through case law the courts have found that persecution exists in the following situations:

  • Serious violations of basic human rights
  • Target of persistent death threats and threats to property and business
  • Severe economic deprivation that threatens an individual’s life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution
  • Violation of one’s fundamental beliefs
  • In certain circumstances, physical harm to others, such as close family members

The persecutor must be either the government or a group of individuals that the government is unable or unwilling to control.  In cases where the persecutor is not a state actor, an adjudicator will consider the efforts made to inform the government of threats or attacks, as well as governmental efforts to prosecute similar harm.

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An Introduction to Hardship Waivers

A person may be found to be inadmissible to the United States for many different reasons.  These include three- and ten-year bars for unlawful presence; crimes involving moral turpitude (CIMTs); prostitution; simple possession of less than thirty grams of marijuana; certain medical inadmissibility; and misrepresentation. To overcome such an inadmissibility, an I-601 Waiver will need to be filed.  The primary basis to qualify for an I-601 Waiver is to show “extreme hardship” to a qualifying relative.  In some cases, one may also qualify by showing there has been criminal rehabilitation. If someone had been previously removed from the United States, an I-212 Waiver for prior removal is necessary and is not based only on extreme hardship to a qualifying relative, although such a hardship can be used to strengthen a case.

Sometimes there are complications that result in a waiver not being an option. Some of the worst complications are those that create permanent inadmissibility. These include false claims to U.S. citizenship, drug convictions or guilty pleas after age eighteen, gang memberships, and previous findings of marriage fraud or frivolous asylum. There is very little to be done after a finding was made in a prior immigration proceeding that there was a frivolous asylum claim made after April 1, 1997.  However, in other instances it may be possible to challenge a finding of permanent inadmissibility.  For example, it may actually be possible to show that a finding of marriage fraud was an error, especially if the marriage is still intact. It may be possible to argue that a vague drug crime is not a crime pertaining to possession of a controlled substance. A person who had made a claim to citizenship may have been completely unwilling. A person may truly not be a gang member. These are difficult cases but may be worth pursuing as it may very well be someone’s only opportunity to return to his or her family.

The waiver process changes constantly, as does immigration law itself. If you feel that you or someone you know requires assistance in this area please contact our office.

Do’s & Don’ts in H-1B Filing Season

Each year prior to April employers and their prospective employees vying for the much coveted H-1B status, of which currently only 85,000 visas are available every year, work to file their cases with U.S. Citizenship & Immigration Services (USCIS) and hope that they will actually have their H-1B applications approved.  Because so much can be at stake in these filings, potentially resulting in loss of job and business opportunities, not to mention potentially displaced foreign nationals who would not be able to be in or continue to stay in the United States absent other viable immigration options, paying attention to details and making sure that a filing is done correctly may make all the difference.

For a comprehensive overview of the H-1B process, read my article Basic Overview of the H-1B Visa Qualifications and Procedures.

Here are some basic guidelines that should always be observed in H-1B filing season:

  • DO start early in the planning process and DON’T wait until the last minute to begin an H-1B case.  The process of gathering the required information and documents in each case can take a few days to several weeks or longer, depending on the size of the employer and the unique situation of each prospective employee.  Additionally, before an H-1B application can be submitted to USCIS, an employer also needs to file a Labor Condition Application (LCA) with the U.S. Department of Labor, which can take up to 7 working days to certify.  Filing an H-1B application without a certified LCA is counterproductive as USCIS will simply reject and return the entire filing, therefore it is important to allow enough time before April 1st to plan, stay organized and make sure that the LCA is in hand.
  • DO expect that the employer or the H-1B petitioner will remain actively involved throughout the entire process.  DON’T rely on the prospective H-1B employee to do all the legwork.  The H-1B is an employment-based process, and the petitioning employer must be aware of what is involved and have a keen understanding of the process itself.  Having the prospective employee “take care of things” generally would not benefit anybody, including the H-1B employer.
  • DO have a clear understanding of the proposed H-1B position, its duties as well as the wage requirements.  DO make sure that the proposed position is a good match for the prospective employee’s skills and qualifications.  DO check that the H-1B candidate has the necessary documentation to demonstrate that he/she is qualified for the proposed position.  DON’T rush through this process as USCIS may very well come back and challenge the merits of this H-1B filing later.
  • DO have a backup plan.  DON’T put all eggs in one basket, as the expression goes.  If the prospective employee was not fortunate enough to have his/her H-1B application selected for review by USCIS, he or she might need to go back to school, apply for another work visa, or return to his/her home country.  Whatever the option may be, it is important to think through these less desirable but possible scenarios ahead of time.  A good strategy is to prepare for the worst and hope for the best!

For more information about this process schedule an appointment with our office today.

Treaty Traders and Investors

Foreign nationals who wish to come to the U.S. to engage in international trade or to direct and operate a business investment may do so if they are citizens of a country that has entered into a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent with the United States using the E visa.  This is a temporary, non-immigrant visa that may be obtained from overseas at the U.S. Embassy or consulate through consular processing or from U.S. Citizenship & Immigration Services if the foreign national is filing from within the U.S. for an extension or a change of a status.

The list of qualifying treaty countries can be found on the U.S. Department’s website, which currently can be accessed here.  Eligible visaholders may enjoy their E visa status for two years at a time, to be renewed in two year increments for an indefinite number of times, provided they continue to meet the visa requirements.

E-1 Treaty Traders

E-1 Treaty Traders are either traders coming to the U.S. to carry on a trade of a substantial nature for him/herself, someone else, or for an organization engaged in trade, or as an alien employee of a treaty trader coming to the U.S. to assume an executive or a supervisory role or some essential function for the efficient operation of the trade enterprise. To qualify as an employee for E visa purposes the foreign national’s employer must be a national of a qualifying treaty country and must have at least 50% ownership in the business organization.

For the purposes of E-1 visa, trade means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other. Items that qualify for trade include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities. 

For the trade to be substantial there must be continuous trading activities between the United States and the treaty country, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.

E-2 Treaty Investors

E-2 Treaty Investors are foreign nationals coming to the United States to invest or to be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States for the sole purpose of developing and directing the enterprise.  E-2 status may also be granted to a qualifying employee of a treaty investor as long as the employer maintains his/her E-2 status and has at least 50% ownership of the organization.

A treaty investor must place personal capital (funds or other assets) at risk in the commercial sense with the objective of generating profit.  The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The invested funds may be placed in escrow pending visa issuance, that would not only irrevocably commit funds to the enterprise but that might also extend some personal liability protection to the treaty investor.

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