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Archive for the ‘Department of Homeland Security’ Category
31st August 2010
New Procedures for Those Wishing to Adopt Orphans from Nepal
Posted by : admin
Adoption is one of the greatest things that people can do to provide love and care to orphaned children. This is especially true in cases where American or bi-national couples adopt orphans from less prosperous nations abroad. In the past, many Americans and foreign nationals have traveled to Nepal in order to adopt children from this small Asian nation. In a recent press release from the United States Citizenship and Immigration Service (USCIS), under the authority of the US Department of Homeland Security, it was announced that there will be new processing procedures in cases where Americans petition for immigration benefits in connection with adoption of orphans from Nepal. To quote the press release directly:
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) today announced that any U.S. citizen seeking to adopt a Nepali child, whose case is not affected by the suspension of processing of adoption cases involving Nepali children claimed to have been found abandoned, should file the Form I 600, Petition to Classify an Orphan as an Immediate Relative, with the U.S. Embassy in Kathmandu, Nepal.
Usually, Immigrant visa petitions are initially adjudicated by a USCIS office in the United States. This change to processing procedures seems to indicate that special considerations are being taken by Immigration officials tasked with adjudicating Nepali adoption based immigration petitions. To quote the aforementioned press release further:
This change in the filing location for the Form I-600 petitions applies to two groups of prospective adoptive parents who are not affected by the suspension. The first group is those who received a referral letter from the Government of Nepal’s Ministry of Women, Children and Social Welfare before Aug. 6, 2010, informing them of a proposed match of an abandoned child. The second group is those who seek to adopt Nepali children who were relinquished by known parent(s) and whose identity and relationship can be confirmed.
USCIS strongly encourages prospective adoptive parents to follow this procedure for their own benefit, based on growing concerns about unreliable documents, irregularities in the methods used to identify children for adoption in Nepal, and the resulting difficulties in classifying those children as orphans under U.S. immigration law. Please see the Aug. 6, 2010 announcement online regarding the suspension.
Verifying documentation can be a major issue in any Immigration proceeding, but this problem can be particularly acute in cases involving adoption. A decision, one way or the other, in an immigrant adoptee’s adjudication proceeding could have a tremendous impact upon the lives of everyone involved. Therefore, caution is required in order to attempt to ensure an equitable decision. The press release went on to state:
To file the Form I-600 petition with the U.S. Embassy in Kathmandu, prospective adoptive parents should complete and sign the Form I-600 and send the Form I-600 with all required supporting documents and evidence, other than the adoption or custody decree, to their respective local agency representatives in Nepal…Based on this filing, the U.S. Embassy in Kathmandu will then complete the required orphan determination before prospective adoptive parents travel to, or adopt a child in, Nepal.
Following this procedure will protect the interests of the prospective adoptive parents and the children by ensuring that the adoptive children will be eligible to immigrate to the United States before the prospective adoptive parents travel to Nepal and complete the Nepali adoption process. It is anticipated that most determinations will be completed within 90 days of receipt of the case by the U.S. Embassy in Kathmandu.
If, after completing its investigation of the case, the Embassy finds that the child qualifies as an orphan under U.S. immigration law, the prospective adoptive parents will be notified in writing that they may travel to Nepal to complete the adoption process.
It would seem that this new policy is designed to allow for increased scrutiny of relevant documentation in Nepali adoption cases. Consular Officers are often in a unique position to adjudicate pending immigration applications abroad. Should the officer find that the application is bona fide then he or she can issue the visa. If, on the other hand, the Consular Officer finds that there are further issues to be explored, then he or she can issue a 221g refusal and request for further evidence or deny the application outright based upon a ground of inadmissibility. In most immigrant visa applications, when Consular Officers deny the application, they usually do so pursuant to section 221(G) of the US Immigration and Nationality Act which allows the applicant to rectify the problem through presentation of further documentation or evidence.
For further information about American Immigration from Asia please see: US Visa India or K1 Visa Vietnam.
30th August 2010
In previous posts on this blog, this author has discussed so-called visa companies and other organizations that claim to be licensed to provide legal services to immigrants and prospective immigrants. In a previous post, the New York Attorney General’s campaign to combat fraudulent immigration practitioners was discussed at length. It would appear that Attorney General Andrew Cuomo is still intent upon seeing that this type of activity is thwarted. To quote directly from a press release distributed by the American Immigration Lawyers Association (AILA):
NEW YORK, NY (August 17, 2010) – Attorney General Andrew M. Cuomo today announced the latest actions in his ongoing effort to combat scams that target New York’s immigrant communities. As part of his broad investigation into immigration fraud, Cuomo has shut down seven companies and sued two other organizations for providing fraudulent legal services to immigrants.
The following seven companies and their owners have been permanently barred from operating any immigration services businesses and must collectively pay $370,000 in damages to the State of New York: (1) Centro Santa Ana, Inc. and Ana Lucia Baquero, in Queens; (2) Margo’s Immigration Services and Margarita Davidov a/k/a Margo Davidov, in Queens; (3) Miguel Fittipaldi, J.D., Ltd. and Miguel Fittipaldi, in Manhattan; (4) Arthur C. Hurwitz, in Manhattan; (5) Oficina Legal Para
Hispanos, P.C. and Geoffrey S. Stewart, in Manhattan; (6) Asilos and Camilo Perdomo, in Queens; and (7) Mision Hispana, Inc. and Mayra Liz, in Queens.The Attorney General began an investigation and issued subpoenas to these companies after receiving information that they were engaged in fraudulent and illegal business practices. The illegal conduct included, among other things, misrepresenting their authorization to submit documents on behalf of immigrants to the government and giving legal advice to immigrants. Further, some of these companies involved attorneys who aided others in the unauthorized practice of the law and simply lent their name to provide legitimacy to the business. Collectively, these companies abused hundreds of immigrants.
This author is pleased to see Attorney General Cuomo taking such a keen interest in an often overlooked problem plaguing the United States at large as well as immigrant communities in the USA. These immigrant groups are often targeted by unlicensed “visa agents” or “Immigration specialists” who prey upon uninformed consumers.
This can be a real problem outside of the United States as well. In Asia, there are many unlicensed practitioners who claim to be authorized to practice US law. When dealing with someone who claims to be US lawyer abroad it is always wise to ask for credentials in order to ascertain whether or not an individual really is qualified to provide legal advice on American immigration matters. An American attorney’s credentials can be proven by producing either a State of Federal license to practice law or a Bar Association membership card for a State or Federal Bar Association. Even after production of such documents consumers are well advised to check with the attorney’s licensing body in order to verify that the individual in question is a licensed practitioner.
For related information please see: US Attorney Bangkok
24th August 2010
Those familiar with this blog may recall that new measures have been implemented that can have an effect upon those traveling to the United States on the Visa Waiver Program. The Department of State (DOS) recently released a cable which outlines soon-to-be implemented changes to the Electronic System for Travel Authorization (ESTA). The following is quoted directly from the Department of State Cable as distributed by the American Immigration Lawyers Association (AILA):
Summary: This cable provides additional information on implementation of the Travel Promotion Act of 2009 (TPA) and fee collection for the Electronic System for Travel Authorization (ESTA), requests posts to engage in outreach, and provides talking points. End summary.
3. As previously reported (Ref a), President Obama signed the TPA into law on March 4, 2010. The TPA will create a partnership between the U.S. government and the private sector to market the United States as a travel destination for international visitors. Fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.
4. On August 6, 2010, DHS announced an interim final rule that amends DHS regulations to require travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14.00, with $4.00 to recover the cost of administering the ESTA system and $10.00 as mandated in the TPA.
5. The Department is working with DHS and the Department of Commerce to notify foreign and domestic media, the travel industry, and other stakeholders about this change. The Department requests that consular officers in VWP countries, in coordination with DHS and Commerce representatives, meet with host government officials, and airline, tourism, and other stakeholders to inform them of the new fee provisions connected to ESTA. Please contact the ESTA Program Management Office [redacted] for outreach materials or requests for ESTA representatives to travel in-country. They will do their best to accommodate. This cable is being sent as an ALDAC to facilitate all posts answering questions from citizens of VWP countries and the general public.
6. The Department supports the TPA goal of attracting international visitors to the United States. Our greatest diplomatic tool for sharing American values is America itself, and we recognize the critical importance of travel and tourism to our economy and job creation. The Department looks forward to working with the Corporation for Travel Promotion to ensure that prospective visitors to the United States receive comprehensive, up-to-date information on travel documents and requirements for entry.
The Travel Promotion Act mentioned above will likely have significant consequences for those foreign nationals traveling to the United States pursuant to the conditions of the visa waiver program. Therefore, those originating in a country that has visa-free travel privileges to the USA may be wise to research both the US Visa Waiver Program and the ESTA program. Fortunately, the aforementioned cable also included a Frequently Asked Questions Section. The following FAQ’s were quoted from the previously mentioned DOS cable distributed by AILA:
Q. What is the new fee charged to travelers?
A. It is $14.00. Since the implementation of ESTA, DHS has had discretion to charge a fee to cover administrative costs. DHA determined that cost to be $4.00 per registration. The TPA fee adds an additional $10.00.
Q. When will the fee go into effect?
A. ESTA registrations on or after September 8, 2010, will be subject to the fee.
Q. How do travelers pay the fee?
A. At this time, payment is required through the following credit cards: Mastercard, Visa, American Express, and Discover. Payments can also be made with a debit card that holds the Visa or Mastercard symbol. Please check with your bank on the compatibility of your debit card. We are continuing to explore other payment measures. The ESTA registration form already in use will walk users through the payment process.
Q. What types of privacy protection exist on the website?
A. “Pay.gov” uses advanced encryption to protect transactions while applicants are logged in. When accessing a profile, any account numbers entered will be masked on-screen.
Q. How long are ESTA approvals valid?
A. Each approved ESTA application will be valid for a period of two years unless the traveler’s passport expires sooner. It allows for multiple visits to the United States within that application.
Q. If I have a valid ESTA, will I have to re-register when the new fees go into effect?
A. No, existing ESTA registrations remain valid for travel through their expiration date.
Q. Is ESTA approval like a visa?
A. An ESTA approval is not a visa under U.S. law, nor does it confer the same benefits as a visa.
Q. Will this attract more international visitors to the United States?
A. Oxford Economics, a leading economic forecasting consultancy, estimates that the TPA program will generate $4 billion in new visitor spending, and lead to the creation of 40,000 new jobs.
Q. Why do VWP countries have to fund this travel promotion program through ESTA fees?
A. Some countries fund tourism promotion through airline or hotel taxes. The Travel Promotion Act legislation specified that the U.S. government fund this program through a $10 fee added to ESTA registration.
8. The following are Visa Waiver Program member countries: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom…
At the time of this writing, the Kingdom of Thailand is not a member of the United States Visa Waiver Program. Therefore, ESTA rules have little impact upon most Thai nationals. That said, as pointed out in previous blog posts, relevant regulations may require those who have been issued a 221g refusal to disclose this refusal as a “visa denial” for purposes of travel to the USA on the Visa Waiver Program. It would seem that at the time of this writing the Department of State and the United States Customs and Border Protection Service (USCBP), an agency under the authority of the US Department of Homeland Security, view 221(G) refusals differently. Those who have been issued a 221g who still wish to travel to the United States may be wise to contact a US lawyer in order to deal with a pending 221g refusal.
Those who are from countries that do not participate in the Visa Waiver Program should seek a US visa before traveling to the USA. For information about the US Tourist Visa please see: B2 visa.
23rd August 2010
Laypeople sometimes confuse the process of adjustment of status with the change of status process. This confusion is directly related to the subject of this post: change of status from US Tourist Visa status to US Student Visa status. Many are under the mistaken impression that it is legal to attend school in the USA on a tourist visa. This is not the case. In a recent announcement promulgated by the US Department of Homeland Security and distributed by the American Immigration Lawyers Association (AILA), the question was posed: “Is it permissible to enroll in school while in B-1/B-2 status?” The answer is quoted directly from the aforementioned announcement:
No, it is not. The regulations, at 8 CFR 214.2(b)(7), specifically prohibit study in the United States while in B-1 or B-2 status.
Before enrolling in classes, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status. Enrolling in classes while in B-1/B-2 status will result in a status violation. Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status or change to F-1 or M-1 status. Theseregulations provide no exceptions.
If you currently hold B-1 or B-2 nonimmigrant status and would like to enroll in classes, you may apply for a change of status to F-1 or M-1, as appropriate, if:
You have not yet enrolled in classes
Your current status has not expired
You have not engaged in unauthorized employment
To change your nonimmigrant status from B-1/B-2 to F-1 or M-1, you must file an Application to Extend/Change Nonimmigrant Status (Form I-539), and include the required fee and documents listed in the filing instructions.
Please Note:
If you enroll in classes before USCIS approves your Form I-539, you will be ineligible to change your nonimmigrant status from B to F or M. If you are applying to extend your B-1/B-2 stay and you have already enrolled in classes, USCIS cannot approve your B-1/B-2 extension because of the status violation.
For some, the change of status process can be confusing and difficult as few are familiar with DHS forms and protocols, but for those who obtain an F1 visa, the educational rewards can offset the time and resources expended obtaining the visa. Those who are not eligible to receive a change of status may find the following excerpt from the previously mentioned announcement helpful:
If you are not eligible to change your nonimmigrant status to F-1 or M-1, you may apply for an F-1 or M-1 visa at a consular post abroad…We encourage all students and prospective students to work closely with their designated school official (DSO) to coordinate the timing of applying for change of status and enrolling in classes.
Those staying in the United States on any type of visa are required by law to fully comply with the terms of their visa. Failure to do so could lead to severe civil and criminal penalties. Those wishing to travel to the United States of America are well advised to seek the type of visa that truly comports with proposed activity in the USA. As extraneous circumstances can cause unforeseen problems it may be necessary to apply for a change of status if one’s current visa does not provide proper benefits.
Adjustment of status, which can be confused with changing status, is the process of switching a foreign national from a non-immigrant visa to Lawful Permanent Residence (Green Card). Those traveling to the United States of America on a K1 visa must adjust their status within 90 days of their arrival after their marriage to the US Citizen petitioner.
For more about adjusting status please see: adjustment of status.
18th August 2010
The United States Customs and Border Protection Service (USCBP) is tasked with implementing security policy along the US borders. This organization is also responsible for screening immigrants and entrants on their way in to the United States of America (as defined by the United States Immigration and Nationality Act). Recently, an announcement was released which noted that USCBP is testing new technologies in an effort to provide further security along the border and at Ports of Entry to the United States. To quote the aforementioned publication directly:
As part of its Multi-Modal Biometrics Projects, the Department of Homeland Security (DHS) Science & Technology (S&T) Directorate and the National Institute of Standards and Technology (NIST) are investigating iris recognition as a promising biometric modality that may become suitable to support DHS operations in the near future…
Iris scanning has been discussed in the past in connection with identity verification technology. It would seem that until recently this technology was not available for widespread use due to testing and cost considerations. Also, the technology is relatively young and, as a result, there has been little time to examine all of the ramifications of this technology:
This project is managed by the DHS Science and Technology (S&T) Directorate, co-sponsored by the National Programs and Protection Directorate, US-VISIT Program and leverages the joint expertise of DHS, National Institute of Standards and Technology (NIST), Department of Defense (DoD) and the U.S. Naval Academy. Iris recognition is a promising biometric modality that may become suitable to support DHS operations in the future. However, iris recognition has not been systematically and extensively evaluated outside of carefully controlled environments (i.e., in laboratories). The purpose of this evaluation of iris recognition technologies is to conduct field trials/studies of iris camera prototypes under conditions and environments of relevance (e.g., humidity levels, amount of sunlight, etc) to DHS operational users to assess the viability of the technology and its potential operational effectiveness in support of DHS operations.
In a way, this Iris technology has a great deal in common with identity identification through fingerprinting. In the future, some believe that eye scanning technology will be widely used in order to increase security at certain facilities. Furthermore, there are some who believe that Iris scanning, or technology similar thereto, will be used as a means of identification for quick cross referencing in various government databases. The aforementioned report went on to further note:
The iris is a muscle that forms the colored portion of the eye. It regulates the size of the pupil, controlling the amount of light that enters the eye. Although the coloration and structure of the iris is genetically linked, the details of the iris structure are not. Iris imaging requires use of a high quality digital camera that illuminates the iris using near-infrared light and takes a photograph without causing harm or discomfort to the individual. The prototype cameras in this evaluation are designed to capture iris images for different operational scenarios (e.g., standing in front of a mounted or handheld camera or walking near a camera while walking through a portal).
S&T and US-VISIT are working with the DHS Customs and Border Protection (CBP)/ Office of Border Patrol to develop a concept of operations (ConOps) to describe how the technology may be tested to support its existing operational missions.
It will likely take a relatively substantial period of time before this technology is used widely. That said, the implications of such technology could be very significant from both a privacy standpoint as well as a practical standpoint. In a final excerpt from the above cited publication:
Once identified by the DHS team, the iris camera prototypes will be provided to the U.S. Border Patrol agents. The iris camera prototype includes sensors such as floor-mounted pressure sensors, beam break sensors, motion sensors, and simple cameras. This system works by electronically capturing the iris images of individuals that are placed in front of the camera…
Although consumer use of iris scanning technology may not be the norm in the near term, there are those who believe that USCBP will have this technology at their disposal soon. Hopefully this new technology will provide increased security in a legal and non-obtrusive manner.
For related information please see: expedited removal
14th August 2010
This author recently came across the following information regarding petitions submitted to the Inter-American Commission on Human Rights. The following is a direct quotation from a press release from the Organization of American States distributed by the American Immigration Lawyers Association (AILA):
On December 27, 2002 and July 17, 2003, the Inter-American Commission on Human Rights (the “Inter-American Commission” or the “IACHR”) received petitions from the Center for Justice and International Law (CEJIL), the law firm of Gibbs Houston Pauw, and the Center for Human Rights and Justice (“the petitioners”) against the Government of the United States (“the State” or “United States”) on behalf of Wayne Smith and his children and Hugo Armendariz and his children, respectively, (hereinafter collectively the “alleged victims”) in relation to Mr. Smith and Mr. Armendariz’s deportation from the United States. According to the petitions, the State violated the alleged victims’ rights protected under Articles I (right to life, liberty and personal security), V (right to private and family life), VI (right to family), VII (right to protection for mothers and children), IX (right to inviolability of the home), XVIII (right to fair trial) and XXVI (right to due process of law) of the American Declaration on the Rights and Duties of Man (the “American Declaration”).
Deportation, also referred to as removal, is the process whereby foreign national(s) residing or remaining temporarily in the United States, either lawfully or unlawfully, are sent back to their home country (or another country outside of the United states) usually following proceedings in which a tribunal adjudicates the legality of a foreign national’s presence in the United States. To quote the aforementioned press release further:
Regarding the merits of the case, the petitioners allege that Messrs. Smith and Armendariz, both of whom were legal permanent residents in the United States, were subjected to deportation without permitting them to present a meaningful defense in administrative and judicial courts, including the following alleged internationally-required consideration of humanitarian equities to deportation: the alleged victims’ length of legal residency in the United States; the alleged victims’ family ties in the United States; the potential hardship on the family members left behind in the United States; the alleged victims’ links with their countries of origin; the extent of the alleged victims’ rehabilitation and social contribution to the United States; any medical or psychological considerations; and the gravity of the alleged victims’ offense and the age when it was committed.
Lawful Permanent Residence (LPR) is a legal status in the United States also referred to as “Green Card” status. Those American Citizens married to a foreign national often seek a CR1 Visa or an IR1 Visa in order to obtain the benefits of lawful permanent residence for their foreign loved one(s). Under certain circumstances an alien present in the United States in lawful permanent resident status can be stripped of said status if they have committed certain “aggravated” criminal offenses or other acts which are deemed to be grounds for removal from the USA, or grounds of inadmissibility to the United States (if the LPR has been abroad and is seeking readmission to the USA or if State law allows activity which Federal law deems to be a legal grounds of inadmissibility) . To further quote the aforementioned press release:
In its response on the merits, the State asserts that under international law each sovereign nation has the right to establish reasonable, objective immigration laws that govern the circumstances under which non-citizens may reside in its country. From this principle, the State argues that the statutory scheme established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”) and the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”) is a reasonable exercise of sovereign authority to protect U.S. citizens and other non-citizens alike who reside in the United States. Under IIRIRA and AEDPA, a legal permanent resident who has been convicted of an “aggravated felony,” is deportable without the opportunity of receiving a waiver of deportation from an immigration or federal judge. In addition, the State asserts that the petitioners interpret the relevant articles under the American Declaration too expansively and that they fail to recognize the proviso in Article XXVIII of the American Declaration, which permits Member States under certain circumstances to curtail a person’s individual rights in order to preserve the rights and security of others. The State asserts that the mandatory deportation of a non-citizen convicted of an “aggravated felony” is such a circumstance.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) is a significant piece of Immigration legislation in that it changed some of the procedures relevant to removal. Specifically, expedited removal, a comparatively quick removal proceeding often conducted by Officers of the Customs and Border Protection Service (USCBP), was essentially created by the provisions of the IIRAIRA. In recent years, some believe that deportation of “aggravated felons” in LPR status has increased, but that some of those removed from the USA have had certain due process rights violated in the course of their removal. The case in question seems to rely upon arguments based upon this supposition. To quote the aforementioned press release further:
After having reviewed the positions of the parties and their accompanying evidence, the IACHR concludes that the United States is responsible for violations of Wayne Smith and Hugo Armendariz’s rights protected under Articles V, VI, VII, XVIII, and XXVI of the American Declaration. The Inter-American Commission further concludes that it is well-recognized under international law that a Member State must provide non-citizen residents an opportunity to present a defense against deportation based on humanitarian and other considerations, such as the rights protected under Articles V, VI, and VII of the American Declaration. Each Member State’s administrative or judicial bodies, charged with reviewing deportation orders, must be permitted to give meaningful
consideration to a non-citizen resident’s defense, balance it against the State’s sovereign right to enforce reasonable, objective immigration policy, and provided effective relief from deportation if merited. The United States did not follow these international norms in the present case. The IACHR presents its recommendations to the State regarding these violations of the American Declaration.
One can speculate as to the ultimate result of the above decision by the IACHR as the above finding could have implications in future removal proceedings as agents of the United States government as well as Immigration adjudicators may be required to provide future prospective deportees with an opportunity to form a defense strategy based upon humanitarian considerations. The exact nature of future defenses based upon humanitarian grounds remains to be seen, but this finding may place more rights in the hands of those foreign nationals in American removal proceedings.
For related information please see: I-601 waiver.
9th August 2010
Those who keep up with Immigration news have no doubt noticed the increasing tensions that have been caused by problems along the Southwestern Border of the United States. In a recent announcement distributed by the American Immigration Lawyers Association it was noted that a new Senate Bill was passed which could provide new funding for increased border security initiatives. To quote the announcement directly:
On 8/5/10, with hours left before the beginning on the August recess, the Senate passed a $600 million emergency spending bill aimed at increasing border security. The bill, titled the Emergency Border Security Supplemental Appropriations Act of 2010, was passed by a voice vote.
Senator Schumer (D-NY), along with several Democratic colleagues, introduced the Border Security Emergency Supplemental Appropriations Act of 2010 (S.3721) and used it as a substitute amendment to H.R. 5875, a bill passed by the House of Representatives on 7/28/10. Further action is required before H.R. 5875, as passed by the Senate, can be sent to President Obama’s desk for signature.
It is unclear at this point if the House of Representatives, which is set to return for a short two day session on 8/09/10, will take up the Senate measure or whether they will wait until September…
In response to the passage of this Bill, the Secretary of the Department of Homeland Security, Janet Napolitano, made the following statement:
“I commend the Senate for passing the Southwest Border bill to add important, permanent resources to continue bolstering security on our Southwest border. These assets are critical to bringing additional capabilities to crack down on transnational criminal organizations and reduce the illicit trafficking of people, drugs, currency and weapons. Over the past eighteen months, this Administration has dedicated unprecedented personnel, technology, and resources to the border and we will continue to take decisive action to disrupt criminal organizations and the networks they exploit. I encourage the House to act quickly on this bill to strengthen our historic border security efforts.”
The final resolution remains to be seen, but there are many who feel strongly about this issue and it is likely that the subject of undocumented immigration will remain controversial heading into the upcoming Congressional elections. That said, Comprehensive Immigration Reform may still be on the horizon notwithstanding bills passed in an effort to deal with the current issues along the US-Mexican border.
For related information please see: Comprehensive Immigration Reform. For information about bringing a loved one to the United States with proper documentation please see: K1 visa or US Marriage Visa.
30th July 2010
The EB-5 Visa: What Is It?
Posted by : admin
In recent months, this author has received a number of inquires regarding the American EB-5 visa. Many seem interested in this visa category because it accords the bearer with substantial benefits in the United States and also puts EB-5 visa holders on track to obtain United States Citizenship. In order to provide the reading public with relevant information, this post will provide a brief overview of the EB-5 visa and some information regarding the application process.
A well rounded layman’s definition of the EB-5 visa can be found at wikipedia.com. To briefly quote wikipedia’s entry regarding the EB-5 visa directly:
“The EB-5 visa for Immigrant Investors is a United States visa created by the Immigration Act of 1990. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States.[1] To obtain the visa, individuals must invest at least $1 million, creating at least 10 jobs.[2]
By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000. The Immigrant Investor Pilot Program was created by Section 610 of Public Law 102-395 on October 6, 1992. This was in accordance to a Congressional mandate aimed at stimulating economic activity and job growth, while allowing eligible aliens the opportunity to become lawful permanent residents. This “Pilot Program” required only $500,000 of investment in exchange for permanent resident status. The investment could only be received by an economic unit defined as a Regional Center.”
Although the above definition provides superficial insight into the mechanics of the EB-5 visa, the official website of the United States Citizenship and Immigration Service (USCIS) may provide deeper elucidation into the eligibility requirements for an EB-5 visa:
Eligibility Criteria
New Business Enterprise
To qualify you must:
- Invest or be in the process of investing at least $1,000,000. If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
- Benefit the U.S. economy by providing goods or services to U.S. markets.
- Create full-time employment for at least 10 U.S. workers. This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
- Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.
Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.” For further detail click on the Laws section of this website and access section 203(b)(5)(B) of the Immigration Nationality Act (INA).
Troubled Business
To qualify you must:
- Invest in a business that has existed for at least two years.
- Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
- The loss for the 12 to 24 month period must be at least equal to 20 percent of the business’s net worth before the loss.
- Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
- Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy. For example as a corporate officer or board member.
- The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).
Regional Center Pilot Program
To qualify you must:
- Invest at least $1,000,000 or $500,000 in a regional center affiliated new commercial enterpriose or a troubled business located within the area of the USCIS designated Regional Center. Regional Centers are defined and discussed further below.
- Create at least 10 new full-time jobs either directly through the capital investment.
A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:
- How the regional center plans to focus on a geographical region within the U.S., and msut explain how the regional center will achieve the required economic growth within this regional area
- That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
- How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
- The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.
As can be seen from the above citation, the eligibility criteria for an EB-5 visa are rigorous, but not insurmountable for an applicant who has the assistance of a competent and experienced US Immigration attorney. Obtainment of EB-5 visas can require a great deal of time and expense in an effort to ensure that the eligibility and application requirements are met at the time of application submission. Those interested in obtaining such a travel document are well advised to contact an American Immigration lawyer.
For further details about US Immigration in general please see: US Visa.
29th July 2010
In other postings on this blog we have discussed the Transportation Security Administration (TSA) in the context of both American Immigration as well as national security. This author recently came across an announcement from the TSA about the methods the agency employs in seeking to prevent activity that could be harmful to the public. To quote the announcement directly:
Under the Aviation and Transportation Security Act (ATSA), the Transportation Security Administration (TSA) has “responsibility for security in all modes of transportation.”1 TSA uses an operations center incident management system called WebEOC to perform incident management, coordination, and situation awareness functions for all modes of transportation. The system will store information that it receives about the following categories of individuals: 1) individuals who violate, or are suspected of violating transportation security laws, regulations, policies or procedures; 2) individuals whose behavior or suspicious activity resulted in referrals by Ticket Document Checkers (TDC) to Behavior Detection Officer (BDO) or Law Enforcement Officer (LEO) interview (primarily at airports); or 3) individuals whose identity must be verified, or checked against federal watch lists. Individuals whose identity must be verified includes both those individuals who fail to show acceptable identification documents to compare to boarding documents and law enforcement officials seeking to fly armed. The system also collects and compiles reports from federal, state, local, tribal, or private sector security officials related to incidents that may pose a threat to transportation or national security. TSA is republishing this PIA to clarify that the TSA Operations Center will record telephonic communications. The PIA previously disclosed in section 1.4 that telephone calls were a source of information but did not explicitly state that telephone calls would be recorded. Daily reports will be provided to executives at TSA and the Department of Homeland Security (DHS) to assist in incident and operational response management.
Those interested in this issue may also be interested in the type of information that the TSA is collecting. To quote the aforementioned announcement further:
TSA will collect information about the following categories of individuals: 1) individuals who violate, or are suspected of violating transportation security regulations, policies or procedures; 2) individuals whose suspicious activity resulted in BDO or LEO interview; 3) individuals whose identity must be verified or checked against Federal watch lists. The information collected may include the full names of individuals, aliases and nicknames, date of birth, place of birth, age, sex, race, nationality, languages spoken, passport number, driver’s license number, and telephone number, home and business addresses; Social Security Numbers, height and weight, eye color, hair color, style and length, facial hair, scars, tattoos and piercings, clothing (including colors and patterns) and eyewear, description of personal carry-on and/or baggage items. The system also collects and compiles reports from Federal, state, local, tribal, or private sector security officials related to incidents that may pose a threat to transportation or national security. Additionally, the TSA Operations Center records telephonic communications between or among TSA and transportation security stakeholders or other law enforcement or security agencies regarding threats to transportation security. Callers receive notice that the call may be monitored or recorded.
Although many people hear the “your call may be monitored” message when calling a telecommunications service some do not take this message to heart. That said, those making innocuous communications are unlikely to worry about the government recording their conversations. However, there are those who feel that this is still an invasion of privacy. In the post-911 era, the precautions taken by security officials are more stringent compared to those which were enacted prior to that tragic day. This author personally feels that protection and security are important, but those in positions of responsibility should refrain from exercising their power in a rash manner. It has always been the experience of this author that all government personnel are courteous and diligent in their efforts to provide security and maintain the policies laid out by the American Congress and the Executive Branch of government.
For more information please see: US Visa Thailand.
27th July 2010
This author has recently been informed that the United States Citizenship and Immigration Service (USCIS) is poised to conduct a thorough policy review which will delve into USCIS’s customer service procedures and look for ways to improve the US immigration system. As a first step, USCIS announced that a public survey would be conducted. Below are excerpts from a USCIS press release (distributed by the American Immigration Lawyers Association [AILA]), which outlines the purpose of the policy review and provides guidance regarding further methods of information gathering in an effort to improve USCIS customer service policies:
WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) has announced the results of a public survey that launched the USCIS Policy Review, an unprecedented, top-to-bottom examination of the agency’s adjudication and customer-service policies. The survey results helped USCIS select the first 10 issue areas to address in the agency-wide review.
Informed by the survey responses, the agency’s needs, and input from the workforce, the USCIS Policy Review will begin by examining policies in the following issue areas: National Customer Service Center; Nonimmigrant H-1B; Naturalization and Citizenship; Employment-based Adjustment of Status; Family-based Adjustment of Status; Employment-Based Preference Categories 1, 2 and 3; Refugee and Asylum Adjustment of Status; Form I-601; General Humanitarian; and Employment
Authorization and Travel Documents.
“As an agency, we must achieve consistency in the policies that guide us and in how we implement them for the public benefit,” said USCIS Director Alejandro Mayorkas. “To achieve that critical goal, we are partnering with the public in this major undertaking to review our adjudication and customer-service policies. We will work collaboratively toward the shared objectives of consistency, integrity, transparency and efficiency.”
In April 2010, USCIS issued a survey that asked any interested member of the public, as well as its own workforce, to help identify the issue areas that the agency should examine first. USCIS received approximately 5,600 survey responses from diverse stakeholders. Those results are now available, along with a summary developed by USCIS’s new Office of Performance and Quality.
Some have questioned the need for such a survey as there are those who feel that USCIS’s current policies do not need improvement. Clearly, this is not the official view of USCIS as can be evidenced by the following statement:
On April 15, 2010, U.S. Citizenship and Immigration Services (USCIS) launched the USCIS Policy Review, an unprecedented, top-to-bottom examination the agency’s adjudication and customer service policies with the engaged participation of the USCIS workforce and the public. USCIS issued a survey that asked any interested member of the public, as well as its own workforce, to help identify the issue areas that the agency should examine first. Nearly 5,600 stakeholders responded to the survey, representing current immigrant and non-immigrant visa holders, employers, immigration attorneys and advocates, among others, in addition to responses from approximately 2,400 members of the USCIS workforce. Those responses helped USCIS select the first 10 issue areas to address in the agency-wide review. USCIS is now convening working groups to review the first 10 issue areas.
The press release went further than merely providing information regarding this important policy review. In an effort to provide the public with relevant information, the United States Citizenship and Immigration Service (USCIS) also provided a “Q & A” component to the recent press release. The following are questions and answers arising in connection with USCIS’s policy review initiative:
Questions and Answers
Q. What is the USCIS Policy Review?
A. The USCIS Policy Review is a comprehensive review of policy, guidance, and procedures related to our adjudications and customer service. The Policy Review is divided into four stages: (1) assembling and categorizing existing policy documents; (2) deciding which issue areas to review first, with input from surveys of the workforce and external stakeholders; (3) completing a review of policies in each identified issue area; and (4) consolidating and publishing updated policy documents (as appropriate), once approved.
Q. How does the Policy Review advance major goals already established for USCIS and the Department of Homeland Security (DHS)?
A. In the 2010 Quadrennial Homeland Security Review (QHSR), DHS identified the effective administration of the immigration system as a key priority. In particular, the QHSR emphasized the importance of a system that produces fair, consistent and prompt decisions for the public it serves. The Policy Review is designed to ensure that USCIS meets that standard in its work.
Q. How does the Policy Review relate to USCIS’s responsibilities and authority under federal law?
A. By law, USCIS is charged with setting policies and priorities for the administration of immigration services. USCIS will be reviewing those policies in our current effort. If the Policy Review identifies the need for proposed regulatory changes, we will fully engage in the federal rulemaking process. The purpose of the Policy Review is not to develop proposed changes to the immigration statutes established by Congress.Q. Will the Policy Review change USCIS policy?
A. In many cases, yes. Working groups will evaluate policy based on USCIS goals, legal requirements and stakeholder concerns. These working groups will draft updated policy documents and proceed through USCIS’s policy-approval process. If the Policy Review identifies the need for proposed regulatory changes, USCIS will fully engage in the federal rulemaking process.
Q. What happens to existing policies during the course of the Policy Review?
A. While the Policy Review is underway, all policies already in place remain in full force and will be honored. From time to time in the course of the agency’s operations, policy issues may arise that require immediate attention outside the course of the formal Policy Review. We will continue to give these issues immediate attention as the need arises.
Q: What prompted the Policy Review?
A. USCIS is committed to ensuring that our policies are consistent and up to date. To that end, the agency has launched the USCIS Policy Review to examine our policies with input from the public it serves and from its workforce.
Q. Has USCIS previously undertaken a comprehensive review of its policies?
A: No. The effort to undertake a top-to-bottom review of our adjudication and customer service policies is an unprecedented initiative for USCIS.
Q. How will USCIS seek the public’s input during the Policy Review?
A. In keeping with our commitments to customer service and transparency, USCIS will engage practitioners, advocates, businesses, applicants, and other interested stakeholders throughout the course of the Policy Review. The survey was the first opportunity for stakeholders to participate. As we review policies in specific issue areas, we will offer a number of further opportunities for the public to offer input. For example, in some issue areas, we will conduct public meetings to solicit stakeholders’ views on specific policy matters. In many cases, we will also published drafts of new or revised policy memoranda on our website for public comment, now a regular step in USCIS’s policy development process.
Q. What did the survey ask?
A. The survey asked any interested member of the public, as well as the USCIS workforce, to help identify the issue areas that the agency should examine first. The survey also included comment sections.
Q. How many people responded to the survey?
A. Nearly 5,600 external stakeholders responded to the survey, representing current immigrant and nonimmigrant visa holders, employers, immigration attorneys and advocates, among others. Nearly 2,400 members of the workforce from USCIS offices worldwide also participated in the survey.
Q. How has USCIS used the survey results?
A. The survey results helped USCIS identify which issue areas to address first in its agency-wide review. USCIS considered quantitative and qualitative feedback from the surveys along with operational and programmatic needs to develop the initial list of issue areas for review.Q. In addition to the survey, what progress has USCIS made in the Policy Review?
A. USCIS has assembled thousands of existing policy documents and categorized them into issue areas. USICS is now convening internal working groups to begin examining and evaluating the policy documents in the first 10 issue areas.
Q. What is the expected length and scope of the Policy Review?
A. The Policy Review is a multi-year effort designed to work thoughtfully through thousands of policy documents, many of which overlap or complement each other, in collaboration with the USCIS workforce and external stakeholders. New policy documents, once drafted, will be submitted through the USCIS clearance process, with many posted on the USCIS website for public comment.
At the time of this writing, there have been relatively few changes in the law regarding US Family Visas. Although administrative and regulatory changes have had a significant impact upon processing of the US Marriage Visa and the US fiance visa. That said, the recent fee increase for Consular Processing of the K1 visa (fiance visa) and the administrative closure of K3 Visa applications by the National Visa Center were promulgated by the Department of State (DOS) as there has been little recent change in the fee structure and administration of USCIS’s adjudication of family based visa petitions.
This author is of the opinion that this unprecedented policy review should be welcomed as it may herald further improvements to the American Immigration system and provide immigrants and Americans with better overall service. One must applaud USCIS for taking the initiative and promoting positive change.
For related information from the perspective of Southeast Asia please see: K1 Visa Thailand.
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