DELAWARE IMMIGRATION LAWYER BLOG

The EB-5 Immigrant Investors Program is recently extended to September 30, 2012. The statutory requiments of the EB-5 visa are burdensom. Approximately only about 1,000 people a year have immigrated in this category — just one-tenth of the visa available.

For the regular program, the enterprise must (1) be one in which the person has invested at least $1 million (or at least $500,000 if investing in a targeted employment area), (2) benefit the U.S. economy and (3) create full-time employment for at least 10 U.S. workers.

A business can be used for employment-creation classification by more than one investor, provide that each investor has invested the required amount and the creation of 10 full-time jobs may be attributable to each investor.

The investor is required to enter the U.S. to engage in a new commercial enterprise, i.e., the investor must maintain more than a purely passive role in the new enterprise, and he or she must either be involved in the day-to-day managerial control of the commercial enterprise or manage it through policy formulation.

USCIS does not require retention of employees until a reasonalbe time after conditional visa is issued. Normally, a comprehensive business plan supporting the need for 10 employees within the next two years is acceptable.

The procedure to apply begins with submitting initial evidence with an I-526 petition. If the I-526 petition is approved, the investor becomes a conditional resident for two years. After the two years, the investor has to file an I-829 to remove the condition. It must be accompanied by evidence that the individual has invested or was in the process of investing the required captial, and the investment has created 10 full-time jobs.

B-1 visa is for the visitor who has an unabandoned foreign residence, intends to visit only temporarily and intends to engage only in permitted business activities.

B-1 business visitor may be admitted for the purpose of enaging in business but not for the purpose of local employment or labor for hire. in distinguishing, the determination would be whether the principal place of business and actual accrual of profits are in the foreign country. Permitted business activities may include

• Engaging in commercial transaction which do not involve gainful employment
• Negotiating contracts;
• Consulting with business associates; and
• Participating in scientific, educational, professional or business conventions, conferences

B visitors may apply for extension of stay in six month increments and may change to other non-immigrant visa statuses.

On 10/28/2009, President Obama signed into law which extends the non-minister religious worker, the “Conrad 30″, the EB-5 visa (investor visa) and the E-Verify program through September 30, 2012.

The law also includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process.

As of September 25, 2009, approximately 46,700 H-1b cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1b petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, recoked or withdrawn.

Some decisions and cases support that a corporation even if it is owned and operated by a single person may hire that same individual in an H-1B capacity. This is based on the concept that the corporation is a separate legal entity fron its owner. However, self-sponsored H-1Bs are subject to careful review. The parties have to prove existence of a bona fide employer and employee relationship.

USCIS issed guidance on requesting deferred action for surviving spouse of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from their U.S. citizen spouse at the time of that spouse’s death; did not remary; and are currently residing in the United States.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I-130 petition for them. Surviving spouses who apply for deferred actio will need to file Form I-360 with supporting documentation. Work authorization and travel authorization will be available.

Deferred action is an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. It is a temporary discretionary solution to remedy the situation commonly referred to as the “widow penalty”, which prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s dealth, from becoming permanent residents based on the marriage.

Certain firearm offenses will result in deportation. INA Section 237(a)(2)(C) states that “any alien who at any time after admission is convicted under law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device in violation of any law is deportable.” Moreover, firearm offense may be considered as a crime with morial turpitude if an element of charge involving the use of a firearm, which then may lead to inadmission.

Person applying for citizenship must show good moral character for 5 years (or for a spouse of a United States citizen, 3 years, or for person in the military, 1 year) prior to filing and up to the time of admission. For example, a person convicted of a crime of moral turpitude, multiple crimes or a drug crime is not eligible for naturalization.

It is important to note that a person must be denied citizenship not only if he is convicted, but if he admits facts that constitute certain crimes. 8 C.F.R. Section 316.10(b)(2)(iv). Expunged records are still relevant to a Good Moral Character determination.

People with criminal records should always consult an immigration attorney before filing the citizenship application.

USCIS has issued instructions on making inquires with four Service Center. The step-by-step instructions are as follows:

Step 1: contact the National Customer Service Center at 1-800-375-5283.

Step 2: if more than 30 days have passed since your contacted the NCSC, you can email the proper USCIS Service Center to check the status of your case.

California Service Center: csc-ncsc-followup@dhs.gov
Vermont Service Center: vsc.ncscfollowup@dhs.gov
Nebraska Service Center: ncscfollowup.nsc@dhs.gov
Texas Service Center: tsc.ncscfollowup@dhs.gov

Step 3: in case you do not receive a response within 21 days of contacting the Service Center, you may email the USCIS Headquarters Office of Service Center Operations by email at SCOPSSCATA@dhs.gov.

For more information on USCIS and its program, visit http://www.uscis.gov/.

“The Obama administration has opened the way for foreign women who are victims of severe domestic beatings and sexual abuse to receive asylum in the United States.”

Read the New York Times article here.