Author: immilawyernj

Yemen is currently experiencing widespread conflict and a resulting severe humanitarian emergency. Because of the dangerous conditions, the United States has granted Temporary Protected Status (TPS) for eighteen months from September 3, 2105 through March 3, 2017 for eligible nationals of Yemen residing in the United States.

The Secretary of Homeland Security may designate a country for TPS if the conditions in that country temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already here in the United States.

In light of the ongoing armed conflict within the country, the Department of Homeland Security announced on September 3, 2015 that eligible nationals of Yemen residing in the United States may apply for TPS with USCIS.

To be eligible for TPS, applicants must also have been “continuously residing” in the United States “continuously physically present” since September 3, 2015. Applicants must be able to pass a background check. Those with a criminal history or who pose a threat to national security will not be approved. Also, you may not be eligible for TPS or to maintain existing TPS if you are found inadmissible as an immigrant under applicable grounds in the Immigration and Nationality Act Section 212(a), including non-waivable criminal and security-related grounds, or if you fail to meet initial or late initial TPS registration requirements.

Lastly, once granted TPS, an individual cannot be detained by TPS on the basis of his or her immigration status in the United States. TPS is a temporary benefit that does not lead to lawful permanent resident status or confer any other immigration status. However, registration for TPS does not prevent you from: applying for nonimmigrant status, filing for adjustment based on an immigrant petition, or applying for any other immigration benefit or protection for which you may be eligible.

Those who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period runs through March 1, 2016.

More information can be found on the USCIS website: http://www.uscis.gov/news/dhs-announces-temporary-protected-status-designation-yemen.

TN Visa for NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. As part of its terms, the TN visa category was created to enable Canadian and Mexican citizens to enter the United States to engage in professional business activities on a temporary basis for a period of up to three years.

There are many types of professionals who may be eligible to seek admission as TN non-immigrants, including, but not limited to: accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible if:

You are a citizen of Canada or Mexico;Your profession qualifies under the regulations;The position in the United States requires a NAFTA professional;You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment); andYou have the qualifications to practice in the profession in question.

Canadian Citizens

If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.

A Canadian professional worker may be admitted to the U.S. without advance petition approval or labor certification. In order to apply, the Canadian worker (if in Canada) would have to go straight to any U.S. port of entry (land border crossing, U.S. airport, or U.S. preflight inspection station at a major Canadian international airport) and provide the following documentation to the CBP officer:

Proof of Canadian citizenship;Letter from your prospective employer, your length of stay, and your educational qualifications; andCredentials evaluation (if applicable), together with any applicable fees.

Alternatively, a prospective TN employer may choose to file on behalf of a Canadian citizen who is outside the United States by submitting Form I-129, Petition for Non-immigrant Worker to the USCIS Vermont Service Center.

If USCIS approves Form I-129, you, the prospective worker, may then apply to CBP for admission to the U.S. as a TN non-immigrant to a CBP Officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station by providing the following documentation:

Proof of Canadian citizenship; andApproval Notice from USCIS for Form I-129.

In addition, when applying for admission, you should have in your possession a copy of Form I-129, and all supporting documentation that was submitted to USCIS, to respond to questions about your eligibility. You should also be prepared to pay any applicable inspection fees at the time you seek admission. If a CBP officer finds you eligible for admission, you will be admitted as a TN non-immigrant.

Upon entering the U.S., the Canadian TN professional will be given an I-94 card (or one accessible online) indicating an authorized stay of up to three years. This period can be extended in three-year increments without leaving the United States.

A Canadian national can also apply if already in the United States.

Mexican Citizens

If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN non-immigrant. You should apply for a TM visa directly at a U.S. embassy or consulate in Mexico. Once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.

Dependents of TN Non-immigrants

TN visa recipients can also bring their spouses and children (under the age of 21) to the U.S. by providing proof of the family relationship, such as a birth or marriage certificate, with the application process. However, spouse and children are not permitted to work while in the United States, but they are permitted to study. Further, they are granted TD status for no longer than the period of time granted to the principal TN non-immigrant.

Every month, the Department of State (DOS) publishes current visa availability information in its Visa Bulletin, which can be found at: http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. The Visa Bulletin indicates when visas are available to prospective immigrants based on their individual priority date. Availability means applicants are able to begin their final steps in the process of obtaining their green cards. The priority date is generally the date when the applicant’s employer or relative properly filed the immigrant visa petition on the applicant’s behalf with USCIS.

On September 9, 2015, USCIS and DOS announced that they would be making some changes to the procedures for determining visa availability for applicants waiting to file adjustment of status applications (employment or family-based).

The new procedures would allow individuals to apply for adjustment of status much earlier than they normally would. They would also be able to obtain benefits for themselves and their families, such as work authorization and permission to travel.

The reason for this is to help ensure that the maximum number of immigrant visas is issued annually as intended by Congress, despite the long waiting periods for cases to be processed.

Prior to the changes, DOS published one chart in its visa bulletin each month that determined both when an application could be filed and when pending applications could be adjudicated. Beginning with the October 1, 2015 visa bulletin, there will be a second chart published each month, which will now govern cases that are eligible to file for adjustment of status in the United States.

There will be two charts per visa preference category:

Application Final Action Dates (dates when visas may finally be issued); andDates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, USCIS will post the relevant DOS Visa Bulletin chart after determining whether additional visas are available. Applicants can use these charts to determine when they must file their Form I-485, Application to Register Permanent Residence or Adjust Status.

Anytime anyone enters the United States through consular processing or applies to adjust their status, it is important that s/he passes a criminal background check. When applying for legal permanent residence, also known as a “Green Card,” an immigrant can be denied entry or admission to the United States if s/he has committed a “crime involving moral turpitude” (“CIMT”).

A crime involving moral turpitude is defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Generally, a crime involving moral turpitude requires evil intent. Examples include murder, manslaughter, rape, spousal abuse, child abuse, robbery, aggravated assault, theft, and fraud, among many others. However, a CIMT can also include crimes that may not seem so serious, but could ultimately affect your immigration case.

However, if you are applying for a green card and have committed a crime, there is a chance that you may qualify for an exception, which essentially “excuses” your criminal conviction. The “petty offense exception” is a waiver of this particular ground of inadmissibility. To qualify for the petty offense exception, you must meet certain criteria. For example, a CIMT is a petty offense if the maximum penalty that you could have received for committing the offense is exactly one year or less; and you personally were sentenced to no more than six months of imprisonment.

Additionally, please keep in mind that not all crimes are eligible for the petty offense exception. The petty offense exception can only apply to one offense, meaning that if you have committed two or more crimes involving moral turpitude, you will not be able to benefit from this exception, regardless of the maximum sentence and amount of time that you served.

It is important to have an experienced immigration attorney review your case if you have any type of criminal conviction, since the definitions of crimes for each state are different and specific details may determine whether a particular crime is a CIMT. However, if you do qualify, this form of immigration relief could potentially change your life for the better and allow you to remain in the United States and adjust status.

For more information or to set up a consultation with our experienced immigration attorney, please contact our office.

Advance parole (Form I-131) is an immigration document issued by the United States that allows foreign qualified nationals to re-enter the United States after temporarily traveling abroad. Individuals who are not U.S. citizens, do not have valid immigrant visas, and have pending applications for certain immigration benefits are required to apply for a travel document and be approved for Advance Parole prior to leaving the United States, in order to avoid termination of their pending applications.

However, in situations in which Deferred Action for Childhood Arrivals (“DACA”) recipients are applying for Advance Parole, the applicant must apply for and receive DACA approval prior to applying. DACA recipients must provide as much evidence as possible to explain the purpose of intended travel abroad. In order to receive advance parole, a DACA recipient generally must show that s/he is traveling abroad for humanitarian, employment, or educational purposes. Generally, USCIS will only grant advance parole if your travel abroad will be in furtherance of:

humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative; educational purposes, such as semester-abroad programs and academic research, or; employment purposes, such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Please keep in mind that travel for vacation is not a valid basis for advance parole.

To apply for Advance Parole, a DACA recipient must submit Form I-131 to USCIS. The advance parole applicant must then submit proof of DACA status by either a copy of the USCIS Notice of Action (Form I-979) showing a DACA approval or a copy of an approval order, notice or letter from USCIS. The applicant must be able to explain the purpose of the trip and the countries the applicant plans to visit. In addition, the requester must submit evidence of the purpose of the trip, the intended date(s) of travel, and the duration of the trip(s). USCIS will determine each request on a case-by-case basis, so the more supporting documentation you have, the better.

Lastly, USCIS does not generally grant expedited requests for advance parole for DACA recipients. However, in a dire emergency, USCIS is willing to consider an expedited request at a local USCIS office.

http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.

As you may have seen and heard on the news, this past April, Nepal was hit with a magnitude 7.8 earthquake and subsequent aftershocks that killed over 8,600 people and injured more than double that amount. Nepal and its people suffered devastating damage and is still in the process of trying to rebuild their country. In an effort to assist the people affected by the earthquake and keep them safe, the Department of Homeland Security (“DHS”) announced on June 24, 2015 that eligible nationals of Nepal residing in the United States may apply for Temporary Protected Status (“TPS”) with USCIS.

The Secretary of Homeland Security may designate a country for TPS if the conditions in that country temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already here in the United States. In light of the recent natural disaster, DHS has designated Nepal to be a TPS country.

The TPS will be effective from June 24, 2015 through December 24, 2016. This means that during this designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive a work permit (employment authorization document (EAD)) for 18 months. The 180-day TPS registration period begins June 24, 2015 and runs through December 21, 2015.

To be eligible for TPS, applicants must also have been “continuously residing” in the United States “continuously physically present” since June 24, 2015. Applicants must be able to pass a background check. Those with a criminal history or who pose a threat to national security will not be approved. Also, you may not be eligible for TPS or to maintain existing TPS if you are found inadmissible as an immigrant under applicable grounds in the Immigration and Nationality Act Section 212(a), including non-waivable criminal and security-related grounds, or if you fail to meet initial or late initial TPS registration requirements.

Lastly, once granted TPS, an individual cannot be detained by DHS on the basis of his or her immigration status in the United States. However, TPS is a temporary benefit that does not lead to lawful permanent resident status or confer any other immigration status. However, registration for TPS does not prevent you from: applying for nonimmigrant status, filing for adjustment based on an immigrant petition, or applying for any other immigration benefit or protection for which you may be eligible.

For more information about details and procedures for TPS, please visit the USCIS website at: www.uscis.gov/tps.

In 2014, President Obama announced a series of executive actions that could prevent as many as five million undocumented immigrants in the United States from deportation. These initiatives included:

”DACA” or Deferred Action for Childhood Arrivals:

Which expanded the number of individuals who may be eligible for the DACA program. See https://cindypaulesq.com/blog/deferred-action-for-childhood-arrivals.

”DAPA” or Deferred Action for Parents of Americans and Lawful Permanent Residents:

This program allows the parents of U.S. Citizens and lawful permanent residents (LPRs) to request deferred action and employment authorization for three years, provided they have lived in the United States continuously since January 1, 2010; had, on November 20, 2014, a son or daughter who is a U.S. citizen or LPR; and are not an enforcement priority for removal from the U.S; and

Expanded the provisional waiver program by allowing the spouses, sons and daughters of LPRs and the sons and daughters of U.S. citizens to get a waiver if a visa is available. See https://cindypaulesq.com/blog/deferred-action-for-childhood-arrivals.

However, these initiatives have been met with resistance by 26 states, led by Texas. After President Obama announced DAPA, the 26 states sued, arguing that the President exceeded the scope of his authority. As a result, they were granted an injunction in federal court. This means that, as of February 18, 2015, USCIS has not been accepting requests for the expansion of DACA as originally planned, or for DAPA. The court’s temporary injunction, however, will not affect existing DACA applicants.

In response, the U.S. Department of Justice has sought a reversal of the injunction issued by the Texas judge. The premise of this argument is that the temporary hold interfered with the Department of Homeland Security’s ability to protect the U.S. and secure the nation’s s, and that immigration policy falls solely under the control of the federal government and not individual states.

On May 26, 2015, the Fifth Circuit Court of Appeals denied the U.S. Department of Justice’s request to lift the lower court’s injunction against the executive action.

Unfortunately, in the meantime, this means that the lawsuit from the 26 states will proceed, leaving millions of people in suspense until a decision is made.

For more information regarding the Fifth Circuit’s decision, see http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf.

Historically, there has been a form of relief called a suspension of deportation for aliens who had been present in the United States for long periods of time, avoided problems with the criminal authorities, and could show that their forced removal from the country would result in a high level of hardship to certain individuals. However, in 1996, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (”IIRAIRA”), Congress eliminated the former suspension of deportation as a form of relief from deportation. In its place, Congress enacted a form of relief called ”cancellation of removal for certain non-permanent residents,” found under the Immigration and Nationality Act (”INA”) Section 240A(b)(1).

The statutory requirements for cancellation are much higher than those of the former suspension statute. An individual seeking cancellation of removal under this statute can no longer claim eligibility based on hardship to him- or herself. Now, hardship to the alien’s U.S. citizen or legal permanent resident (”LPR”) spouse, parents or children must be shown. Also, the level of hardship that must be proven has risen from ”extreme hardship” to ”exceptional and extremely unusual hardship.” Exceptional and extremely unusual hardship means that the applicant’s removal would cause hardship to that qualifying relative that rises beyond the normal hardship that is expected in the case of removal, such as financial hardship. Such hardship can most readily be proven when the applicant’s qualifying relative has a serious medical condition that cannot be easily treated in the country of removal, or when medical access is not readily available in the applicant’s native country.

Additionally, cancellation of removal requires 10 years’ physical presence in the United States, and the applicant must show that s/he has been a person of good moral character for the 10-year period. Individuals who have been convicted of certain crimes including moral turpitude and aggravated felonies are ineligible, as are individuals who are believed to be threats to national security.

Cancellation of removal is a discretionary form of relief, meaning that not only does the applicant have to meet the statutory standards as outlined in the INA, but the individual must prove that s/he is discretionarily deserving of the benefit. Cancellation of removal leads to LPR status (Green Card) and is a valuable form of relief.

Unfortunately, there is no derivative status for spouses or children of those seeking cancellation of removal. Each individual must qualify on his or her own merits. In addition, cancellation of removal is a ”defensive” form of relief; thus, it may only be sought and received in removal proceedings as a defense to deportation after an individual has been found removable.

For any further inquiries, please contact our office for a consultation.

The H-2B visa is one type of working visa that unskilled foreign nationals use to temporarily enter the United States to work in certain types of jobs. The worker must be engaged in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence, and be from a designated country.

The industries that can most benefit from H2-B workers are the hospitality and service industries. Typically, in these industries, there is a peak season in which employers need additional unskilled labor to fill the jobs that American workers cannot fill. Such jobs include: servers, lifeguards, hosts and hostesses, laundry attendants, construction workers, cooks, cleaners, and many more.

It should be noted that the H-2B cap is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the first half of the year (October 1-March 31) and 33,000 to be allocated for employment beginning in the second half of the year (April 1-September 30). In other words, if you are filing, you must either submit your application before October 1 for the first deadline, or before April 1 for the second. Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year, but there is no “carry over” of unused H-2B numbers from one fiscal year to the next.

In addition to falling into one of the above categories, the petitioner must prove that there are not enough American workers who are able, willing, qualified, and available to do the temporary work in order for the H-2B visa to be issued. Secondly, the petitioner must prove that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The first thing that the petitioner must do is submit a temporary labor certification application (“LCA”) to the Department of Labor and conduct a recruitment campaign, which tests the labor market to see if there are any qualified U.S. workers interested in the position. This is then followed by Form I-129, Petition for Nonimmigrant Worker, to USCIS.

An H-2B visa is usually granted for an initial period of one year, and extensions may be granted not to exceed three years. Further, spouses and unmarried children under the age of 21 may apply for the applicable derivative visa (H4) to join their spouse or parent in the United States. H-4s are entitled to study in the United States, but are not eligible for employment while in the H-4 status.

For more information on H-2B visas, please visit the USCIS website at: http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/h-2b-temporary-non-agricultural-workers#H2-B Program Process

There is exciting news for H-1B nonimmigrant visa holders! Effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to qualifying H-4 dependent spouses of those H-1B nonimmigrants who are seeking employment-based legal permanent resident, or LPR, status. Spouses and unmarried children under the age of 21 are admitted to the United States in the H-4 category.

USCIS will begin accepting applications on May 26, 2015 through the filing of Form I-765, Application for Employment Authorization (EAD). Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the U.S. This can independently lead to their employment-based LPR status. However, employment eligibility would not be open to all of those in H-4 status. The amendment would enable an H-4 spouse to apply for employment authorization if:

The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, orThe H-1B spouse has been granted an extension of his or her authorized period of admission under the American Competitiveness in the Twenty-First Century Act of 2000, also known as AC21, as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking LPR status to work and remain in the U.S. beyond the six-year limit on their H-1B status.

Before the passage of this amendment, it had been extremely difficult for spouses of H-1B visa holders to work. Visa backlogs occur when there are not enough visas available for professional workers. Visa backlogs, as it pertains to the current visa bulletin, causes severe hardships for families, particularly for those from India or China. The applicants from these countries typically have to wait for approximately ten years before they can adjust status to become Permanent Residents. During that period, their spouses are unable to work because they remained in H-4 status. This led to increased frustrations in families as they were dependent on a single income. Consequently many H1-B holders abandoned their pending immigrant visa applications and returned to their home countries. Now, hopefully the economic burdens and personal stresses that H-1B nonimmigrants and their families experience during their transition to LPR status may be lessened and they can fully integrate into American society.