Immigration Articles

What is DACA?

April 23, 2021

On June 15, 2012, the secretary of the Department of Homeland Security under the Obama administration announced a new immigration policy known as Deferred Action for Childhood Arrivals (DACA). This policy allows certain people who came to this country as children to request consideration of deferred action for a period of two years, subject to renewal. Those that qualify are also eligible for work authorization. However, it must be noted that DACA does not provide lawful status and does not establish a pathway to residency and citizenship. Who Qualifies for DACA? Those under the age of 31 as of June 15, 2012; Those who came to U.S. before their 16th birthday; You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order. Those who have continuously resided in the U.S. since June 15, 2007, to the present; Those physically present in the U.S. on June 15, 2012, and at the time of the DACA request; Those who had no lawful status on June 15, 2012, meaning that: You never had lawful immigration status before June 12, 2012, or Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012; Those currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Those who have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. A minor traffic offense will not be considered a misdemeanor for purposes of DACA. Driving under the influence is a significant misdemeanor regardless of the sentence. You can find detailed information in the Criminal Convictions section of the Frequently Asked Questions on USCIS.

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Overview of F-1 Student Status

November 30, 2020

F-1 VISAS International students who plan to attend an academic program or English language program at a U.S. college or university may do so by obtaining an F-1 Visa. To maintain…

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PERM Labor Certification

October 2, 2020

PERM Labor Certification is the process in which foreign nationals, in preference categories EB-2 and EB-3, can obtain an employment-based immigrant visa (Green Card). Before an em…

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Sexual Orientation as a Social Group

March 6, 2020

Introduction Since the early 1990’s, LGBTQ has been recognized as a legitimate social group eligible for asylum protection under the Immigration and Nationality Act. Therefore, in the face of persecution, an applicant may qualify for asylum or refugee status, provided they are able to establish that the persecution suffered or feared was or will be motivated as a result of his or her actual or perceived status as a member of the LGBTQ social group. This article provides information on the factors considered when determining whether or not an applicant qualifies for asylum. Defining Membership of the LGBTQ Social Group In order to be considered as a protected class in American asylum law, a connection, or a nexus, must exist between the harm suffered and a protected characteristic for which the asylum applicant has been persecuted.  Nexus analysis first requires consideration of whether the persecutor perceives the applicant to possess a protected characteristic. In other words, is the person or group giving the individual cause to fear persecution doing so because they believe the asylum applicant LGBTQ? In order to establish the cause of persecution, we must identify the characteristics the persecutor perceives. What have they said about the individual in question, or about individuals similar to the applicant? Individuals who possess or are assumed to possess protected characteristics may: Identify as gay or lesbian Be viewed as a sexual minority, regardless of whether the persecutor or society involved distinguishes between sexual orientation, gender, and sex. Be transgender (note that even if a transgender applicant identifies as heterosexual, he or she may be perceived as gay or lesbian) Be “closeted” gays and lesbians Test positive for HIV, regardless of sexual orientation Be viewed as effeminate or masculine but identify as heterosexual Not actually be gay but are thought to be gay by others

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Public Charge Final Rule

February 7, 2020

UPDATE: As of February 24, 2020, the public charge rule has been implemented nationwide after the Supreme Court stayed the limited state-wide injunction in Illinois against the Department of Homeland Security.  At the same time, the Department of State also began implementing its amended public charge rule, and visa applicants from abroad should prepare Form DS-5540 ahead of their visa interview in case the consular officer requests it.  For more information read the announcement on the Department of State's website.    On January 30, 2020 the USCIS announced that it will resume enforcing the Inadmissibility on Public Charge Grounds Final Rule (“Final Rule”) and begin implementing it on February 24, 2020. Foreign nationals who are applying for visas and green cards from within the United States — through a process known as “Adjustment of Status” — will be subject to the Final Rule starting on February 24, 2020.  For visa applicants who are outside of the country, the Final Rule has not yet been implemented. The Department of State announced in October 2019 to delay enforcement until they first finalized their own information collection form and changes that they would need to make to their policy manual. The Final Rule had originally become effective on October 15, 2019 but was enjoined due to litigation after lawsuits were filed to prevent the Trump Administration’s attempt to enforce the Public Charge rule, which was seen as an effort to expand the government’s ability to deny access to green cards or visas for legal immigrants who would become dependent on public assistance. On January 27, 2020, the U.S. Supreme Court lifted the injunction and allowed the Final Rule to go forward, with exception to the State of Illinois, where the Final Rule remains enjoined. This article offers information concerning the Final Public Charge Rule, what factors will be taken into consideration, and which individuals are likely to be affected by the change. Background on the Public Charge Rule Who is subject to the public charge inadmissibility ground? Unless specifically exempted by Congress, all foreign individuals seeking immigrant or nonimmigrant visas abroad are subject to the public charge inadmissibility ground, as are individuals seeking admission to the United States on immigrant or nonimmigrant visas, and individuals seeking to adjust their status. In certain cases, even lawful permanent residents returning from a trip abroad will be subject to inadmissibility determinations, depending on the circumstances. Immigrants who have been exempted by Congress from the public charge ground of inadmissibility include refugees, asylees, and Afghans and Iraqis with special immigrant visas. For a general overview and developments in this area read our previous articles here.

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New H-1B Registration Process and Practical Tips

February 3, 2020

It is no secret that the H-1B application process has undergone a number of changes over the last year, including a switch to a fully electronic registration, paying a registration fee, and changes to the lottery system. This article gives an update of what we know up to this point as well as tips for applying as successfully as possible. For a basic overview of the H-1B visa please read our previous article. Registration Process Registration for the H-1B is now submitted electronically via the USCIS portal (https://myaccount.uscis.gov/users/sign_up).  An attorney may register on behalf of an employer and should be able to manage one or more clients under that account. To register, an employer must pay a $10 registration fee at http://www.pay.gov using a debit or credit card. An employer may batch payments if they prefer to do so. Once submitted, a confirmation will appear in the portal to show that the registration is being processed. The Lottery This year, the lottery is being conducted in reverse order in an attempt to increase the number of United States master’s degree holders obtaining an H-1B visa. While historically, a lottery was first conducted for U.S. master’s degree holders, and those who were not selected were put into the larger “pool” of applicants, this year all applicants will be put into the pool, and any U.S. master’s degree holders who are not selected in the first round will be put into the pool of 20,000 slots geared specifically toward them. If an employee is selected, a notification of acceptance will appear in the portal, along with a notice of confirmation that must be printed and submitted with USCIS H-1B petition filing. The USCIS have said they will create a wait list for those who are not picked, so even after the lottery is conducted, employers should continue checking the portal. In the unlikely event that USCIS does not receive enough applicants, they will reopen registration. At this time, we do not know whether an employer will be notified if their employee has not been selected. The USCIS will provide training and guidance on how to use the registration system for those who would like it.

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Understanding the Visa Bulletin

August 23, 2019

Introduction United States employment and family-based permanent visas, green cards, are limited each year by number and by country of origin. In 2019, there will be no more than 226,000 family-sponsored visas and no more than 140,000 employment-based visas. The United States further limits employment and family-based immigration by only allowing 7% of visa to originate from one country. This is not a quota and the United States is not required to admit a specified number of foreign nationals from one country, but rather a ceiling and the United States cannot admit more than 7% of the total visas issued to foreign nationals from one country. In 2019, approximately 25,620 visas are equivalent to 7%. The system creates a backlog and visas are awarded on a first come, first serve basis.  To address the backlog, the Department of State and the USCIS created a complex system of priority dates. When a priority date is current, a foreign national may apply for permanent residence. Current means that a foreign national’s individual priority date would be on or before the date published in the monthly Visa Bulletin. Paying close attention to the priority dates is important for establishing permanent residency under the employment or family visa categories.

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The North American Free Trade Agreement (TN) Visa

June 25, 2019

The North American Free Trade Agreement (NAFTA) integrated key sectors of the United States, Canadian, and Mexican economies.  Central to that integration was creating a special visa category that allowed qualified Mexican and Canadian citizens to seek temporary admission into the United States to engage in business activities. To qualify for a TN visa a foreign national must meet five criteria: (1) A citizen of Canada or Mexico, which is commonly demonstrated by a birth certificate or passport; (2) Employed in a profession that qualifies under the regulations, the eligible professions are listed in Appendix 1603.D.1 of NAFTA; (3) The position in the United States must require a NAFTA professional; (4) Prearranged full-time or part-time job with a U.S. employer and (5) The foreign national must have the qualifications to practice in the profession in question. Generally, Canadian nationals are not required to obtain a visa prior to entering the United States, however, Mexican nationals are required to obtain a visa prior to entering the United States. Consequently, Canadian and Mexican nationals have different TN NAFTA visa requirements.

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