Does the Latest Travel Ban Make E-2 a More Attractive Visa Option?

Few days ago Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak extended the previous Proclamation 10014 which banned entry until June 22, 2020 for the rest of the year in 2020.  More importantly, as anticipated by a number of US Immigration Lawyers, the ban expanded the categories affected.  

Thus, this time not only immigrant visas, but also some other popular non-immigrant visas, but also certain categories of the non-immigrants, who want to come to U.S. are banned from entrance up until December 31, 2020.

The newly effected categories are H-1B for specialty occupations and fashion models and H-2B visas for non-agricultural workers, J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counsellor, au pair, or summer work travel program and also L, Intracompany Transferee visa categories. 

The Derivative Beneficiaries of said visa categories are also adversely affected.  Therefore, major categories of employment based non-immigrant visa categories are being affected by the renewed, June 22nd Travel Ban. 

Very noteworthy is that the Travel Ban does not affect E-2 Treaty Investors. This is particularly beneficial for those who want to come to the United States to develop and direct their own business in the United States. 

However, the E-2 Visa applicants must be from certain countries holding a Treaty of Amity with the US.  For example, countries like Pakistan & Egypt have said Treaty while India and Mainland China do not. 

Citizens of Non-Treaty countries can entertain the idea of participating in the CBI (Citizenship by Investment) where a second citizenship may be procured very quickly via either Investment or Donation options to countries like Granada or Turkey which do have the required Treaty of Amity with the US.  In order to undergo an evaluation of your options, in light of the latest Travel Ban, please feel free to contact LAWMAKS.

Disclaimer:

The content in this newsletter should not be construed as legal advice.  We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity

BREAKING NEWS: DIVERSITY VISA LOTTERY RESULTS ARE NOW AVAILABLE

After about a month delay the results are in! On Sunday, June 5, 2020, the U.S. Department of State posted the results of the Diversity Visa Lottery (DV Lottery), known as the Green Card lottery, one of the most popular visa programs.  This year’s result was postponed because of the coronavirus pandemic. 

All the diversity visas available this fiscal year, must be issued no later than Sept. 30, 2021. The State Department has also stressed the Entrant Status website is the only way the lottery winners are announced. Notification letters will not be mailed to selectees and embassies and consulates will not provide a list of names.  All applicants must go to the online Entrant Status Check website at https://dvprogram.state.gov/ as soon as possible to reserve your place in line.

Albeit a major step, this is just the beginning. Each year between 10-20 Million applicants apply for the DV Lottery, and approximately 100 Thousand applicants are selected at this stage. About half of the applicants will meet all the qualifications necessary.

Therefore around 50-55 Thousand will ultimately be eligible to live in the United States as a permanent resident. This year, lottery winners will face added challenges due to the new Public Charge laws as well as the newer Travel Bans related to COVID-19. 

Contacting an immigration attorney is recommended to increase chances of being able to legally immigrate to the United States and achieve the American Dream with a green card in hand in 2021. 

Disclaimer:

The content of this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

USCIS ANNOUNCES PLANS TO RESUME PREMIUM PROCESSING

ast week USCIS announced plans to reopen services and offices on June 1, 2020. In furtherance of this agenda, USCIS released the blueprint for restarting Premium Processing Services for certain petitions. On Friday, May 29, 2020, USCIS gave the timeline for resuming premium processing for Form I-129 and Form I-140 petitions after their temporary suspension of them due to the COVID-19 pandemic on March 20, 2020.

For those who have already filed Forms I-129 and I-140 but have received no action and no refund can refile their premium processing I-907 form in accordance with the same guideline below. 

Effective June 1st, 2020 USCIS will accept:

  • Form I-907 (Request for Premium Processing Service) for all eligible Form I-140 petitions. 

Effective June 8th, 2020 USCIS will accept premium process requests for:

  • H-1B petitions that are cap-exempt
  • All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing 

Petitions that qualify for the June 8th date must already be pending adjudication and must have been filed before June 8th.

Effective June 15th, 2020 USCIS plans to resume premium processing for:

  • H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap for the following reasons:
    • The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization; or 
    • The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).

Effective June 22, 2020 USCIS plans on resuming premium processing for all other Form I-129 petitions, including: 

  • All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s. 
  • All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.

Although these dates are subject to change, USCIS believes it is a feasible timeline to restart premium processing petitions. USCIS has continued to process petitions that were filed before the temporary suspension in March and as we see a decrease in the COVID pandemic it seems we are seeing an increase in USCIS activity.

Disclaimer:

The content in this newsletter should not be construed as legal advice.  We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

EB-1C & the Pandemic & U.S. Green Cards

EB-1C & the Pandemic: Is It Still A Great Option for Foreign Managers and Executives to Obtain U.S. Green Cards?

With the current pandemic and the climbing unemployment rates, the U.S. Administration has already taken steps to limit employment-based visas such as H-1’s or EB-3’s where a foreign national would replace an otherwise qualified U.S. worker.

However, there are other Employment Based categories which would in fact create more jobs in the United States, namely EB-5 & EB-1C immigrant visas.

The Administration appears to welcome visa categories which create jobs as evident from theApril 23rd, 2020 Preside ntial Proclamation where President Trump designated an especial exemption for EB-5 investors, allowing them entry while banning most other Immigrant visa categories.

Being that EB-1C also requires investment and job creation in the United States, we predict that this visa category will also be favored.

There are two different ways to file for EB-1C; most often, it is used in the context of the L-1 visa, and after a foreign Manager or Executive has started a new U.S. office which is an subsidiary,branch or affiliate of an already existing “parent” company overseas.

The second way to use EB-1C is to skip the L-1 altogether, and to purchase an existing company in the U.S. which has beenfully functional for at least one-year.While EB-1C may at first glance appear to be an “easy” option, it is quite complex, and presents challenges which must be carefully planned by utilizing an experienced immigration lawyer.

The most important requirement where allot of EB1-C applicants fall short is the ability to effectively demonstrate “managerial” or “executive” roles.

For this, USCIS will focus on whether the applicant is engaged in day-to-day activities or whether they are managing those activities. The more the applicant is involved at a “functional” level and “hands-on” with the day-to-day activities, the less likely it is that USCIS will find they are in a managerial or executive role.

Often USCIS will deny cases if the applicant is just managing employees unless the applicant is managing professional employees. In our experience, it is often best to build “layers” of management; for instance, a successful EB1-C Manager or Executive may be one who manages other managers who manage other professionals.

Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity

ESTA / VWP Time Extensions Due To COVID-19

Around the globe people have been able to travel using the Visa Waiver Program (VWP) often referred to as ESTA (Electronic System for Travel Authorization).  However, due to the current COVID-19 pandemic many travelers are unable to return home.

This has serious implications under the strict ESTA guidelines which limits travel time to 90 days. Luckily, there is some flexibility to aid those close to violating the 90-day ESTA time limit, provided you meet the requirements of CBP (Customs & Border Protection). Therefore, certain steps have to be taken in order to successfully request an extension to your ESTA.

If successful, a 30-day extension may be granted. Travelers must apply for this extension before the end of their 90-day VPW deadline. If allotted this extension, a second 30-day extension request can be made allowing for a total of 60 additional days. However, this second extension request must be made during the initial 30-day extension. 

If your ESTA / VWP is not properly extended, and you are considered to have violated ESTA regulations, you may face with having to apply for a US Visa at a US Embassy / Consulate in your home-country next time you intend to visit United States; issuance of said visa is at the discretion of the US Consulate and is not guaranteed.  Therefore, it is recommended to properly extend your stay.

CPB offices are not uniform in their procedures on how to extend your ESTA stay, and each location has different nuances and procedures on how they process these requests.  As such, it is highly recommended to contact a qualified Immigration Attorney for this service.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

Effects of Unintended, Lengthy Stay in the United States

The global Coronavirus (COVID-19) pandemic has triggered an array of unpredictable consequences especially for travelers who must worry about maintaining a legal status. With the current cancellation of flights and travel restrictions, many individuals have found themselves wondering how to legally extend their stay in order to remain “in status” of their Visa or ESTA. 

This issue is especially of importance to individuals who may be reaching or surpassing a 6-month “overstay” which may trigger a 3-year bar from returning to the United States. Legal assistance is recommended for individuals affected by the pandemic, due to the rapidly changing protocols and procedures.

Another unintended consequence of COVID-19 has to do with triggering US tax residency for those individuals forced to remain in the US. As a general rule the Substantial Presence Test (SPT) is applied and if an individual (who is not a US citizen or green card holder) is physically present in the US for 183 days (in the aggregate) or more in the calendar year he/she is considered a US tax resident and will be subject to US federal income tax on a worldwide basis. 

While these developments affect many foreign nationals, they are particularly impactful for business sectors that typically have a significant number of foreign nationals in their workforce, such as investment funds, IT businesses, and consulting companies.  

It is highly recommended for foreign nationals and companies who find themselves in this predicament to consult qualified immigration lawyers as well as tax advisors when faced with the unintended consequences of an overstay.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

USCIS Reacts to COVID-19 Pandemic

USCIS has announced it will be adopting “Flexibility” measures in response to the COVID-19 pandemic.

This approach which extends certain response timelines has been adopted in order to mitigate health concerns associated with COVID-19. USCIS has closed the field offices and Immigrants no longer have the ability to have their interviews or to address their immigration issues in-person.  In addition the swearing-in ceremonies for would-be citizens are cancelled. 

Although the “front” offices are now closed, USCIS continues to process and adjudicate cases.  That said, in light of the pandemic USCIS has extended deadlines for certain due dates.  

USCIS is granting an extension of 60-days from the response date stated in your Notice for RFE (Request for Evidence), NOID (Notice of Intent to Deny), NOIT (Notice of Intent to Terminate) as well as other, less common types of decisions:  Notice of Intent to Rescind regional investment Centers & Continuations to Request Evidence.  

Additionally, if an adverse decision is received and an Applicant is allowed the right to file an Appeal or a Motion to Reopen, said Applicant would normally have to file the form I-290B within 30-days of the decision date; the deadline for form I-290B (Notice of Appeal or Motion) has been extended by 30-days from the normal deadline, instead giving the Applicant a total of 60-days from the decision date, within which the form may be considered.  

It is critical to note that said extensions are allowed, provided the Notice / Request / Decision is issued between March 1, 2020 and July 1, 2020.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity.

Latest Travel Ban Issued in April, 2020 by Lawmaks

us-travel-ban

The Real Purpose & Effect of the Latest Travel Ban Issued in April, 2020
At 11:59 pm, eastern daylight time on April 23, 2020, President Trump’s latest Travel Ban went into effect, substantially limiting entry into the United States.

This latest Presidential Proclamation is intended to reduce the risk of exposure to COVID-19 caused by border crossings; however, its real intent is to preserve the U.S. labor market. As the COVID-19 pandemic has caused many businesses to shut down worldwide, said Proclamation’s goal is to keep foreign workers from taking U.S. jobs.

This Travel Ban prohibits entry for 60-days, but many experts predict that it will be extended both in time and in the scope of who it impacts.

Who does this Presidential Proclamation Impact?
Interestingly, this Presidential Proclamation, unlike the previous ones does not target certain nationalities and instead is applicable to all countries worldwide. However, certain individuals are exempt and may still enter United States. These include:
 U.S. Citizens;
 Spouse of a U.S. citizen seeking entry via Immigrant Visa;
 Children under 21 year of age seeking entry via Immigrant Visa;
 U.S. Legal Permanent Residents are allowed back in, however their immediate relatives
(spouse or children) will not be issued any immigrant visas for 60-days;
 Physicians, nurses, or other healthcare professionals, researchers preforming medical research or other research intended to combat the spread of COVID-19 are exempt; so are their spouses and children under the age of 21;
 Surprisingly, EB-5 Visa meant for high net worth investors is also exempt;
 Individuals who are already inside the United States and who seek a Change in Status (from one visa category to another) or Adjustment of Status (from a Nonimmigrant visa to an Immigrant visa) are not impacted;
 Certain other individuals (i.e. holders of Special Immigrant visa, appropriate boarding foil, or an advance parole document, etc.) are also exempt*.

Latest Travel Ban Issued in April, 2020 by Lawmaks
It is very important to note that only individuals who seek Immigrant Visas from outside the United States (at an embassy or consulate) are adversely affected. This Proclamation has no impact on individuals seeking change or adjustment of status on U.S. soil.

Furthermore, your “Immigrant Intent” makes the difference; in addition to the F2, F3 & F4 family visa categories, other visas with Immigrant Intent, such as H-1’s (sponsored work visa) are impacted, while the Nonimmigrant visa categories are not impacted at all. As stated previously, the U.S. labor demand is the true motivation for this Travel Ban.


Therefore, Nonimmigrant visas where there is a presumption and requirement of “no Immigrant Intent,” are not impacted. As such E-2 and L-1 visa applicants are still permitted to seek these visas at U.S. consulates or embassies.

Please beware that these individuals my want to consider moving up their plans, as many believe that this Travel Ban will expand in scope, and eventually adversely affect Nonimmigrant visa categories as well.

While some say that because all the U.S. embassies and consulates are closed due to the Pandemic, this latest Presidential Proclamation is more of a political move rather than having any practical effect. However, we believe that this Proclamation must be taken very seriously as it lays the groundwork for an expansion into covering Nonimmigrant visas such as E-1, E-2 and L-1’s.

*This is not a complete list of individuals who may be exempt from this Travel Ban.

Contact
LAWMAKS for an evaluation of your individual case.
Disclaimer:
The content in this newsletter should not be construed as legal advice. We encourage you to contact an Immigration Attorney for any immigration law questions you may have. Furthermore, the content herein is the work product of LAWMAKS and should not be copied or redistributed in any form or fashion by any individual or entity

USCIS

On February 21st, 2020, the U.S Supreme Court allowed the Trump administration’s public charge regulation to take effect in all 50 states. The U.S. Citizenship and Immigration Services (USCIS) started to abide by this rule as of February 24th, 2020. 

This regulation, which is now grounds for inadmissibility will be enforced for anyone who may use public benefits under certain circumstances. If USCIS determines that an intending immigrant may become a “public charge” under the definition of Department of Homeland Security, the intending immigrant may be unable to become a permanent resident or enter the United States due to the usage of certain benefits. Public charge laws do not apply to an applicant seeking to become a naturalized U.S. Citizen. 

USCIS considers the following factors to play a part in its decision as to whether someone is likely to become a public charge: 

• The applicants’ age, health, family status, assets/resources/financial status, and education/skills are the main factors that will be considered when making said decision; 

• Benefits that make an immigrant a legal charge are the following: Supplemental Security Income (SSI); Temporary Assistance to Needy Families (TANF); Federal, State, local, or tribal cash benefit programs for income maintenance; most forms of federally funded Medicaid; Supplemental Nutrition and Assistance Program (SNAP) formerly known as food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing. 

• This rule is to be applied to those who are more likely to receive or in some cases, have already received (after February 24th, 2020) any of the above mentioned nine benefits for more than 12 months within any 36-month period. It is important to note that if someone is to use two benefits in one month, it will be counted as 2 months of their 3-year timeline. These benefits are only considered if the applicant is the recipient beneficiary, and not the petitioning relative. 

In certain situations, the USCIS or State Department can allow applicants to post a bond in order to overlook the public charge regulation in relation to said applicants’ case. However this is determined on a case-by-case basis. 

Even though some officials are disappointed with this decision, the White House is pleased that this regulation has been put into effect. White House Press Secretary, Stephanie Grisham, has stated that “This final ruling will protect hardworking American taxpayers, safeguard welfare programs for truly needy Americans, reduce the Federal deficit, and re-establish the fundamental legal principle that newcomers to our society should be financially self-reliant and not dependent on United States taxpayers.” 

EB-5 Alert: Major Change to Processing of EB-5 Petitions

eb5-visa

On 1/29/2020 USCIS announced changing its processing protocol for EB-5 processing which translates to good news for some countries such as Pakistan, Ethiopia and Egypt. Currently the operational approach is on a “first-in, first out” basis, where the applications are reviewed based on when each petition is filed.

However, as of March 31, 2020, this approach will change to “visa availability” approach. This means that the agency will adjudicate based on visa-availability, thus prioritizing applications from countries with no retrogression issues. For example, USCIS will give priority to applications from countries such as Pakistan, Ethiopia and Egypt where there is not visa retrogression issues, and will hold off on adjudicating applicants from China, Vietnam or India where there are overwhelmingly more applicants, and where visas will not be available for several years.

Therefore priority will be given to petitions from countries where visas are immediately available, allowing said countries to better use their annual per-country allocation of EB-5 visas. What this means is that applicants from underrepresented countries can expect their petitions to be adjudicated faster than previously expected.

USCIS will hold a public engagement on March 13, 2020 to answer questions from the public, with the anticipated implementation of the new “visa availability” approach on March 30, 2020.

The new approach is in line with existing processing rules for I-130 (family basis categories) and more in line with congressional intent for the EB-5 Immigrant Investor Program, thus promoting fairness in the administration of the program.