Where to File Hardship Waiver Applications

Creation of the two separate regulatory systems for hardship waiver applications established recently by the Administration’s promulgation of the Provisional Waiver regulations rendered many people confused as to where to file waiver applications for individuals who are NOT eligible for Provisional Waiver and intent to navigate the ordinary, well-established waiver rout. People are especially confused because they are routinely told now that the U.S. consulate posts do not accept waiver applications any longer. As recently as yesterday, I received a call from a person from Georgia who, sounding very frustrated, complained of this confusion.


Historically, that is for the last almost a decade or so and until very recently, the procedure had been that determination of whether an immigrant visa applicant was indeed inadmissible and thus warranted a waiver, was supposed to be formally made by the U.S. consulate in that person’s country of residence. Once made, the applicant would be served with what is known as a rejection letter, stating that he or she were found inadmissible and that a waiver could be potentially available for that type of inadmissibility. The significance of this letter is hard to overstate. It is not so because it broke the bad news that the individual was found not desirable and thus could not be allowed into the United States. Instead, the letter would formally start the process of the waiver application. The waiver application would then need to be submitted at the same consulate and the fee paid there. The consulate responsibility then would be to transfer the application to the USCIS foreign post having jurisdictional power over adjudicationof the USCIS applications by residents of that country.

Please visit the myattorneyusa.com website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

An Expensive Public Education for Some Residents of South Carolina

Students who depend on undocumented parents are facing certain obstacles when matriculating at public universities.Often the greatest deciding factor for students in choosing where they will earn their degree is affordability. In an effort to make higher education more affordable for working class families-often comprised of minorities such as Latinos-States have established public universities with significantly reduced tuition rates for residents. Allowing more residents to gain specialized training or certification has significant economic advantages for the state. With higher education, better employment opportunities usually follow and therefore, generate better salaries for residents.

So, should a U.S. citizen who has lived in the state his or her entire life, has voted, and possess a valid driver's license from the state enjoy public university resident tuition rates? The University of South Carolina's administration does not necessarily think so. Students who may have jobs and pay state taxes may still, nonetheless, have to pay higher tuition rates if they depend on their undocumented parents.

I strongly believe that illegal entry into the country is a serious matter. Necessary steps should be taken to ensure that all entry into this country be documented; however, this administrative policy does not curtail illegal entry. Instead, it punishes the U.S. citizen student who wants to go to college and establish a career. Since it is unlikely that the undocumented families are likely to return to their native countries because of high tuition rates for their children, there is little, if any, noticeable result in deterring illegal entry into the country with this policy. The long-term economic result is likely to be decreased matriculation from U.S citizens in colleges. This decreased matriculation defeats the very purpose of lower tuition rates for state residents. With tuition rates increasing categorically at an alarming rate, I think universities cannot afford to deter a college education any further.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

For LGBT Russians, a New Hope Emerges in Canada

With recent changes in Russian legislation, LGBT Russians are desperately seeking freedom from persecution. These refugees now have a favorable chance at being granted asylum in Canada.
According to Canada's immigration minister, Chris Alexander, homosexuals who intend to flee persecution in Russia will have their asylum claims viewed favorably-such as those persecuted because of religious or ethnic reasons in Canada. This is certainly a step towards progress in what seems to be lack of action from international convention.
Recently, Vladimir Putin has approved a few laws incriminating homosexual propaganda. These laws apply to citizens, visitors and tourists as well. In fact, tourists and visitors accused of promoting. Many gay activists in Russia are subject to beatings and humiliation at the hands of other citizens. Furthermore, the Russian authorities do nothing to protect those victimized. Not surprisingly, there will be an increase of homosexual Russian refugees seeking asylum in other nations. Canada will now be a viable option to these refugees. According to officials, about half of Russians that seek asylum in Canada every year are granted. This decision by Canada may influence other nations to emulate a similar policy.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Russia and the War against Homosexuality

Despite the attention that Vladimir Putin is receiving over his recent anti-gay policies, there is still, very much, a massive problem for homosexuals living in Russia. The severity of the issue has gone from alarming to outrageous. It is crucial to incite a major change in Russia's policies. These laws and bills are seedlings which will inevitably expand as long as they are allowed to.

While many people are aware of the anti-gay sentiment, I strongly believe very few people are aware of the degree of persecution that homosexuals in Russia are subject to by both police officers and citizens alike. While going over collections of photographs collected during recent gay pride parades and marches in Russia, I immediately grasped the scope of the horror they live in.

The first sets of photographs depict a peaceful gay pride celebration that took place in 2012. As one continues to look through the photographs, pictures of the same event show civilians punching gay activists. Other pictures show police officers using brutal force on peaceful gay activists, and eventually gay activists are detained while the violent anti-gay protesters remain free. More pictures of the same event show anti-gay protesters angrily shouting at the gay activists, while one protester holds a whip in his hand, threatening violent behavior.

Another gay-pride celebration in Moscow shows a gay activist being punched in the face, while police surround him. It clearly shows the police doing nothing to prevent the violent attack. Another picture shows an older man, likely in his sixties, choking a gay rights activist. The police, again, arrest and detain the gay activists. Another photo of the same event shows authorities in military outfits taking down rainbow flags that are being held by gay activists.

The photos get more appalling for each event. The police officers seem to target only the gay activists while the violent protesters continue to their assault. There are photos showing gay activists covered in blood while they are being attacked. The anti-gay protesters disrupt the gay pride celebration events in groups wreaking havoc, brutally attacking gay activists, pelting them with rotten eggs and dragging them across the streets. Even more disturbing is not the lack of protection from the police for the activists, but the fact that the police condone the assault and often join the violence.

As an observer looking over these photographs, it is difficult to avoid resemblance of what Germany's early Nazi policy was like. More laws are being passed which prevent acknowledgement of homosexual equality. Furthermore, the violence against the homosexual community continues with impunity. If this tragedy continues, it is that the homosexual communities will eventually grow fearful of violence and persecution. Homosexual equality will then be delayed further and there will be less opposition from the media. The less attention this matter receives, the further Putin's campaign is likely to expand. As countries with interests in international policy and the possible economic effects of Russia's policy, we must act promptly.

To see the pictures, click on the link below.

photos from russia everyone needs to see

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Foreign Entrepreneurs May Have a New Hope

National Interest Waiver is a program which allows eligible foreigners to petition for Permanent Residency in the United States without having to undergo the Labor Certification process or having an employer who otherwise would have needed to petition for him or her. In an attempt to boost employment opportunities and economic recovery, the United States Citizenship and Immigration Services have extended the availability of the National Interest Waiver to eligible foreign entrepreneurs.

Prior to this change, foreign entrepreneurs were limited to certain eligibility requirements. For example, the beneficiary would have to have and advanced degree, such as masters or a doctorate, or have extraordinary abilities and a permanent job offer from a valid U.S. employer. In addition to these requirements, the employer needs to file a labor certification application stating the shortage of qualified U.S. workers.

The drawback with the former eligibility requirements is ironic. An entrepreneur, by definition, is someone who starts a business and thus, not to be employed by another. However, the eligibility extension will now allow entrepreneurs to qualify for the National Interest Waiver if the Secretary of Homeland Security deems the waiver to be of national interest.

As for the state of New York, there was a decision that established a three-prong test which governs the granting of a National Interest Waiver. This test was then adopted by the United States Citizen and Immigration Services for National Interest Waiver applicants.

The three prongs require:

1.     The industry or field in which the alien wishes to work should be a field of “substantial intrinsic merit”.
2.     The benefit of the grant should extend nationally.
3.     The national interest would be negatively impacted if a labor certification was required for the applicant.

When attempting to meet the first requirement, it is important to focus on the economic benefit to the nation. The “intrinsic merit” requirement can be met if there is an introduction of new income and products or services of economic value. To fulfill the second requirement, the applicant should focus on job creation. The creation of local jobs will naturally have benefits that extend nationally. The third requirement, however, is a bit trickier. In order to be exempt from the labor certification, the applicant should demonstrate that the national benefit of the waiver will greatly surpass the benefit of giving the job to a U.S. worker. The alien should provide achievements greater than what already has been contributed to the field. To do this, the applicant should show significant past achievements. Furthermore, the applicant should show that requiring labor certification will negatively impact the creation of jobs and thus, has negative national effects.

Prior achievements can be displayed in a variety of ways. One of the most evident is previous success in business ventures overseas. This shows a demonstrated ability to be successful in business and is likely to continue in the United States. Anything that supports the success of the business should also be included—such as current contracts, the number of employees and the ability to meet proposed business goals. The concentration of the application should still remain on the creation of jobs for U.S. workers.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Good News for Spouses and Children of Lawful Permanent Residents

The U.S. Department of State recently released the August Visa Bulletin. You can find a copy of this Visa Bulletin at United State government web site: visa bulletin. Immigrant visas will be current for the F2A category, which includes spouses and children of lawful permanent residents (i.e. LPR's or Green Card Holders) regardless of the beneficiary's native country. It is important to keep in mind that the term child is specifically defined by the Immigration and Nationality Act (INA) as unmarried son or daughter under the age of 21. If your son or daughter has turned 21 while the immigrant visa petition has been pending, it is important you contact an experienced immigration attorney as soon as possible to determine if he or she still qualify for an immigrant visa under the Child Status Protection Act (CSPA).

If your spouse and/ or children are currently residing outside the United States, it is important that you take the time to notify U.S. Citizenship and Immigration Services (USCIS) or the National Visa Center (NVC) of any changes in contact information. You do not want to cause undue delay in immigrant visa application process, because you did not receive notifications from USCIS or the NVC. You can find information on notifying USCIS of a change of address at USCIS government web site. You can find contact information for the NVC at immigrants travel state government visa info. However, if your spouse and/or children are currently in the United States, you should consult an experienced immigration attorney about their eligibility to seek adjustment of status in the United States.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States. 

Lawyer website: http://myattorneyusa.com

USCIS to Review Immigrant Visa Petitions Filed By Same Sex Spouses

In rather rapid development a week after the U.S. Supreme Court's decision in Windsor, overturning Article 3 of DOMA, President Obama has instructed USCIS to start immediately reviewing immigrant petitions filed by same sex spouses. “President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.” Secretary of Homeland Security Janet Napolitano wrote on the DHS website.

DHS also provided a short Q&A, were the answers where rather vague. For instance, to the question of whether I-130 can be filed by the same sex spouse, the answer was that it can be and will not be “automatically denied as a result of the same-sex nature of your marriage.” The Secretary added, that USCIS Director was instructed to now start reviewing I-130 petitions filed by the same sex spouses. Whether reviewing means duly processing and approving those on the merits, which warrant approval remains to be seen.

Read Full text of the Secreatry's Statement and the Q&A.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Senate Passes Immigraiton Reform Bill

Two days ago the Senate overwhelmingly (68-32) passed the Immigration Reform Bill knows as S 744. The 1198 pages document attempts to overhaul U.S. current immigration system by modernizing it and re-tuning its priorities. The Bill would increases H1B visa CAP from 65,000 visas annually currently to 155,000 visas per year, setting 25,000 additional visas for people with advanced degrees in technology, science, engineering, and mathematics, provided they have graduated from U.S. based colleges and universities. The Bills leaves open the door for further increase in the H1B program with the CAP of up to 180,000 visas annually, if the demand warrants such increase.

The Bills also purports to change H1B worker spouse's situation by allowing H4 derivative visa holders to obtain employment authorization in the USA.

The Bill would correct the student situation by attaching dual intent to the F1 student visas and thus resolving frequent visa denials at the consulates for students when they seek to extend their F1 visas. The dual intent would attach to all students who are in at least bachelor's degree programs.

The Bill would expend extraordinary abilities immigrant category to include scientists, professors, researchers, multinational executives and athletes, and exempt them from the existing immigrant visa quotas.

The Bill would exempt from the existing immigrant visa quotas all graduates of U.S. universities with job offers and degrees in science, technology, engineering or math.

The Bill would create a new-entrepreneur visa to facilitate creation of startup companies by foreign entrepreneurs.

The Bill would establish a completely new merit based immigration avenue for up to 250,000 people a year, basing it entirely on points awarded for education, employment, length of residence in the U.S. and other equitable considerations.

The Bill would completely eliminate the Diversity Visa Lottery Program, and channel released 55,000 visas of the program's annual quota to the new point-based system.

The Bill would create a completely new “W” visa with a quota of up to 200,000 visas per year to be awarded to the low-skilled workers for jobs in construction, long-term care, hospitality and other industries.

The Bill would create completely new agriculture worker visa program, which would radically change and replace the exiting parameters of the H1A visa, extending it to the agriculture workers who are already in the United States including those who are here in violation of their immigration status, provided they have worked in the agricultural field for at least two years, giving them another five years with the option to seek LPR status after that, if they stay in the industry.

Click here for the highlights of the Senate Bill 744.

Click here to read the complete text of the S 744.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

"New Immigration Law" - Not So Fast!

I thought I needed to write about the subject of the “new immigration law” as, in my opinion, it is rather important to make this point. As the Senate voted yesterday in favor of the Immigration Reform bill proposed in April by the bipartisan group of eight senators, I see substantial increase in questions about the “new immigration law” and rules. These questions inundate blogs like AVVO and LawQA. They also appear often here on My Attorney USA. Finally, I get numerous emails with the same questions expressing optimism and talking about the Bill as if it was already the law of the land. It is not.

The fact that the immigration reform proposal passed in the Senate is an important step in the direction of actually getting to the new immigration law that makes sense. The Senate passage of the Bill is, however, a baby step in right direction at best. I do support most of the Senate Bill, and I do hope that positive changes to this Nation's immigration system, like point-based immigration, would come and soon. Such system would make much more sense than, for instance, the DV program, which does not work for many, while creating huge wave of aggravation each year.

At the same time, the inflated optimism expressed by some on the blogs including some of my esteemed colleagues is out of context. Today's article in the conservative web publication the Newsmax “GOP Senators Predict Quick Death for Senate Immigration Bill in the House” is a good illustration of this point. I recommend overly optimistic individuals to read the article. It is rather informative. In essence, for the Bill to become law of the land, it must pass the House of Representative and then be reconciled on a congressional conference. If and once that process is over, we will see the final version of the bill, which the President would have to sign into law. I am sure, the final version of the Bill will be nothing like its Senate version. Many of the good provisions will be eliminated or replaced with much more restrictive versions, which would water down the Bill substantially.

Here are but some of the quotes from that article that make the point:

“Sponsors of this legislation, despite the array of financial, establishment, and special-interest support, failed to hit their target of 70 votes,” said Sen. Jeff Sessions, the Alabama Republican who has long railed against the bill. “The more people learned about the bill, the more uneasy they became.”

“Failure to reach 70 votes is significant, and ensures the House has plenty of space to chart an opposite course and reject this fatally flawed proposal,” Sessions said. “It is a broken promise, 1,200 pages long.”

“This is a bill led by Democrats,” Kentucky Sen. Rand Paul declared on Fox News. “There will be a bill proposed for immigration reform led by Republicans in the House, and I'm hoping that's something that I can get behind.”

“I think I made it clear that if we're going to do this the right way, there ought to be a majority of Democrats and a majority of Republicans in favor of it,” the Ohio Republican said, ABC News reports. Sen. David Vitter of Louisiana agreed. “This has no momentum at all in the House,” he said of the Senate legislation.

Sen. John Thune of South Dakota, chairman of the Senate Republican Conference, said any reform legislation needs provisions to “reduce the wait-time and simplify the process for those entering the country legally.
“Unfortunately, instead of proving to the American public that Congress is serious about border security and enforcing the laws already on the books, the final Senate bill gives weak promises on border security, leaving many aspects of implementation to the discretion of the Homeland Security Secretary,” Thune said. “Simply put, the Senate immigration bill is legalization first and empty promises of border security second,” he added.

The article underlies the major problem with the Bill. It does not have enough bipartisan support in the House to pass unchanged and its changed version, if that one even passes, might me much less favorable to immigrants and immigration causes.

The article can be found here: “GOP Senators predict quick death for Senate Immigration Bill in House”

Source: newsmax.com, foxnews.com

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Article 3 of DOMA is Unconstitutional

“Marriage” and “Spouse” Will Continue To Be Defined by State and not Federal Law.

This Wednesday, June 26, 2013, in a truly historic and dramatic 5-4 decision UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL, with Justice Anthony Kennedy not only voting with the majority but actually delivering the decision of the United States Supreme Court, the Court overturned the §3 of the federal Defense of Marriage Act (DOMA) as unconstitutional. The Court upheld the underlying decision by the U.S. District Court for the Southern District of New York that ordered the IRS to accord the plaintiff eligibility for the surviving spouse exception from estate tax under the United States Tax Code.

The Congress of the Unites States legislated DOMA and then President Clinton later signed it into the law in September of 1996. As it turned out, §3 of DOMA proved to be one of the most sweeping exercises of the Federal legislative power aimed at discriminating against a very distinct group of people — same sex couples who wanted their union to be publically acknowledged, celebrated and afforded same rights as the heterosexual unions — be recognized as marriage.

The way DOMA effectuated this sweeping discrimination was by amending the Dictionary Act-a law which mandates Federal Government and its numerous bureaucracies “to define “marriage” and “spouse”” for over 1,000 federal laws and the whole realm of federal regulations-in a way that excluded same-sex partners.”

As Huffington Post eloquently put it: “The federal government's refusal to recognize legal same-sex marriages has imposed a “stigma,” enshrined a “separate status” into law and “humiliates” a group of people — and that is unconstitutional, concluded Justice Anthony Kennedy, writing for the majority of Supreme Court justices on Wednesday in their historic decision striking down the 1996 Defense of Marriage Act.”

In Windsor, the Court recognized the underlying controversy and high emotions surrounding the definition of marriage. The Court noted that when DOMA was enacted in September of 1996, no state at the time had yet recognized marriage to include same sex partners. The Court recognized that although marriage and domestic relations had traditionally been viewed as falling almost exclusively into the realm of the legislative and regulatory powers of several states, Federal Government could, in some limited circumstances, regulate some aspects of the domestic relations. The Court cites Social Security regulations allowing the acknowledgement of the common law marriages as marriages for purposes of eligibility for federal benefits as an example of such proper interference regardless of how a particular state treats common law marriage.

The Court further acknowledged that marriage has been traditionally perceived as a union between one man and one woman by our cultures and traditions and that new laws of the 11 States so far, which expended definition of marriage in their respective jurisdictions to include same-sex partners presented rather new development in the area of domestic relations. The Court acknowledged that the issue was very emotional for all the parties involved on both sides of the argument. The Court concluded that it had the power to decide the case on the merits of the dispute, despite the Executive Branch's decision not to defend constitutionality of DOMA. The Court notied the agreement of the Executive Branch with Ms. Windsor, the plaintiff, that Article 3 of DOMA was indeed unconstitutional, but found that continious enforsement of the law the Esecutive Branch continued to undertake, preserved sufficient state of the Federal Government in the outcome the case to give the Court power and reason to rule on its merrits. The Court concluded that both constitutional and prudential requirements were satisfied in this case for the Court to have jurisdiction to hear and decide so. Justice Kennedy, writing for the Court, emphasizes that the Court's refusal to rule on the merrits of this case would leave the judicial branch without precedent in this area and would have very serious adverse effect on many underlying lower court decisions currently awaiting precedential guidance. The majority of the Court concluded that thus refusing to decide this case on the merits would have disadvantaged large number of people whose matters greatly depended on the outcome of this case.

On the merits of the case the Court concluded that both Equal Protection and Due Process guarantees of the Fifth Amendment of the United States Constitution indeed afforded same sex unions the same rights heterosexual unions enjoyed under the law and that for these reasons §3 of DOMA's definition of marriage as a union between one man and one woman was unconstitutional.

In further development, Janet Napolitano, The Secretary of the Department of Homeland Security (DHS) in a press release, welcomed the decision and promised that DHS would implement the decision including in this Nation's immigration system to recognize marriages between same-sex couples for purposes of the Immigration and Nationality Act (INA) and accorded by INA variety of Federal Immigration benefits to make them avalaible to same-sex spouses.

The fight, however, is not yet over. This decision came of the highly devided Court. Three different descending opinions were filed with the Chief Justice Roberts and Justices Scalia, Thomas and Alito expressing various points of dissent. Justice Scalia in his dissenting opinion in which Justices Clarence Thomas and Chief Justice John Roberts joined, called this essentially gay marriage endorsing decision a “jaw dropping assertion of judicial supremacy over the people's representatives in Congress and the executive.” Justice Scalia pronounced that “[t]oday's opinion aggrandizes the power of the court to pronounce the law,” predicting that such action of the Court would have diminished the “power of our people to govern themselves.” In the view of many as pointed out by the Newsmax in its recent article, “the court's action goes well beyond merely rejecting a federal definition of marriage.” Justice Scalia seems to agree: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this court's declaration that there is 'no legitimate purpose' served by such a law, and will claim that the traditional definition has the purpose and effect to disparage and to injure the 'personhood and dignity' of same-sex couples. The result will be a judicial distortion of our society's debate over marriage — a debate that can seem in need of our clumsy 'help' only to a member of this institution.” Justice Scalia's opinion underlines the truth of the fact that the fight in this arena will continue for years to come and Windsor while very important and historical decision, is by no means is the final stop in this journey and will, indeed, have to withstand the challenge of time.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

INA Sec. 214 (b) Based Refusals of Nonimmigrant Visa Are not Equivalent to Inadmissibility

There is a recurring confusion over the implications of section 214(b) and 212(a) of the Immigration and Nationality Act. Both sections, although similar in their outcome-precluding entry into the U.S.-apply to different circumstances. A refusal under section 212(a) is comprehensive in nature because it precludes this individual's entry into the United States unless such inadmissibility is overcome. Once an applicant is refused under 212(a) of the Immigration and Nationality Act, the applicant is deemed “inadmissible”. This means that the applicant has been denied entry into the U.S. This section applies to both immigrant and non-immigrant applicants. This denial of entry can only be overcome by the passage of time for whcih the entry is precluded, when such restriction is temporary or a waiver of inadmissibility prior to the passage of time or when the restriction is permanent as is the case, for instance, under INA Sec.212(a)(6(C)(i) with inadmissibility for fraud and/or misrepresentation.

Conversely, section 214(b) of the Immigrant and Nationality Act deals with the denial of entry into the U.S. as a non-immigrant. This section, however, is trickier in its application. Unless classified as a non-immigrant in any of the provisions of the Act, all applicants are presumed to be immigrant until deemed otherwise by the consular officer. Unfortunately, this leaves much room for confusion and discretion, leaving the possibility of a non-immigrant applicant getting refused for failure to proactively and properly identify him/herself as a non-immigrant. There is also a danger that the consular officer can deny non-immigrant visas for spiteful reasons. Consequently, a non-immigrant can be classified as an immigrant before the consular officer, and therefore not eligible for non-immigrant visas under section 214(b).

Furthermore, there is also the issue of understanding a refusal under section 214(b) and outright inadmissibility under the Immigration and Nationality Act. It is important for applicants, consular officers and attorneys to discern the difference. A refusal under the section 214(b) does not necessarily imply a refusal under section 212(a). Nonetheless, a refusal under section 212(a) may, in fact, entail a refusal under section 214(b) as well. For example, an applicant who wishes to seek entry into the U.S. from a foreign country under a non-immigrant visa may be denied entry for failing to provide sufficient evidence of ties to his/her home country. So, can the applicant still receive legitimate entry in to the U.S.? Possibly. The applicant may be eligible for a visa as under immigrant status. It is up to the applicant to make sure they seek appropriate counsel.

On the bright side, there is ongoing review of the statutes and provisions that relate to these matters under the Immigration and Nationality Act. For example, there is a stronger emphasis on the manner in which consular officers determine eligibility for immigrants and non-immigrants alike under these provisions. It is important for applicants to proactively seek eligibility under the appropriate provision and if unsure seek appropriate legal counsel.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

U.S. Supreme Court Strikes Down DOMA

The U.S. Supreme Court issued a landmark ruling for LGBT rights today by striking down the Defense of Marriage Act's (DOMA) provision prohibiting the federal government from recognizing same-sex marriages as unconstutional. The U.S. Supreme Court's decision in United States v. Windsor can found here. The decision concluded DOMA amounted to the “deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” The decision found “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others” and that DOMA was unconstitutional, because there was no legitimate purpose for disparaging those whom states “sought to protect in personhood and dignity.”

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

LGBT Groups Continue to Support Comprehensive Immigration Reform Despite Setback

The New York Times recently published an article by Julia Preston and Ashley Parker regarding continued LGBT support for an overhaul to the United States immigration system despite the failure to include a key provisions supported by gay rights advocates. The article was published by the New York Times on May 27, 2013 and can be found using the following link: “gay groups support immigration overhaul despite”.

The Senate Judiciary Committee recently passed the bipartisan immigration reform bill after considering more than 300 amendments. However, one key amendment supported by LGBT rights advocates was not introduced for consideration by the Senate Judiciary Committee. This provision would have allowed United States citizens to file immigrant visa petitions on behalf of their foreign same-sex partners allowing the foreign national partner to receive lawful permanent residence (i.e. a green card). The Defense of Marriage Act (DOMA) prevents United States citizens from petitioning for their foreign same-sex partners even if legally married in a state or country where same-sex marriage is recognized. Under the current immigration system same-sex couples are forced to choose between living apart and traveling to see one another or having the foreign national remain in the United States without legal status. Some couples are fortunate enough to be able to remain together in the United States when the foreign national has other means of obtaining lawful immigration status in the United States such as through long-term non-immigrant visas, employment-based immigrant visas, asylum claims, etc.

Unfortunately, the decision not to introduce the amendment was purely political. The Republic members of the “Gang of Eight” argued that adding the same-sex amendment would have disastrous consequences on the entire immigration reform bill. Senator Lindsey Graham warned Democratic supporters of the provision that “to try to redefine marriage within the immigration bill would mean the bill would fall apart.” The Republican supporters of immigration reform were more concerned with losing support from evangelical Christians and Roman Catholics than drafting an immigration reform bill that provided compassionate, humane and balanced reform.

Though LGBT rights groups were rightfully outraged that the amendment was not even considered, they nonetheless continue to support comprehensive immigration reform. Comprehensive immigration reform would still provide many benefits to members of the LGBT community. Young LGBT immigrants who were brought to the United States as children would be eligible for an accelerated path to United States citizenship under the Senate's immigration reform bill. Illegal immigrants who identify as lesbian, gay, bisexual, and transgender would also be eligible for provisional legal status and eventual United States citizen. In addition, the amendment allowing United States citizens to file immigrant visa petitions on behalf of their foreign same-sex partners could still be considered and added to the overall immigration reform bill during debate.

While the proposed immigration reform bill does not eliminate all the challenges faced by binational same-sex couples, it nonetheless provides many members of the LGBT community with a viable path to legal status in the United States. It is also important to keep in mind that the U.S. Supreme Court's ruling on the federal law that defines marriage for purposes of federal benefits as between one man and one woman may resolve the issue while not threatening to derail comprehensive immigration reform.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Employer-Employee Relationship in H1B Context

As I answer questions on MyAttorneyUSA, AVVO and LawQA, I frequently run into a situation when I am contacted by an individual who had not been allowed entry into the United States at the airport, despite having had a valid, properly issued H1B visa. After having been subjected to intense and somewhat technical questioning by the CBP officers on secondary inspection, the individuals are then found inadmissible, saw their visas canceled and, if they were lucky, offered an option to withdraw their application for admission in lieu of the expedited removal and five years of inadmissibility that follows in a case of such removal. They are told correctly that such withdrawal would allow them to avoid the five-year inadmissibility bar.

The reason for the trend has to do with the guidance issued by USCIS in the Memorandum dated January 8, 2010 authored by Donald Neufeld, Associate Director of the USCIS’s Service Center Operations. The Memo radically changed USCIS’s position on the types of relationship that, according to this new interpretation, represented a bona fide employer-employee relationship within the meaning of the H1B visa program. Though referenced as “clarification,” the Memo in essence substantial shifted the Agency’s position on the issue. The new interpretation of the phrase “employer-employee relationship” dramatically reduced the number of situations, which would now qualify as a legitimate employer-employee relationship in the H1B context. The Memo addressed a wide range of situations including independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites situations and draw rigid lines in the sand.

Mr, Neufled set forth very specific requirements which now applied to an employer who sought to hire a “specialty occupation” temporary “employee.” In so doing, the Service substantially limited a number of associations, which now qualified as employer-employee relationships. The Memo also provided some examples of valid as well as not valid relationships. Thus, USCIS determination as to the existence of a valid employer employee relationship now hinges on the employer’s right to control the means and manner in which the work is performed. 

Mr. Neufeld listed quite a laundry list of factors the adjudicating officer would considered in making a determination whether the petitioner-employer indeed possessed the right to control the beneficiary, ”including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner’s right to control the beneficiary’s daily work and work product; and the petitioner’s right to hire, pay and fire the beneficiary.  Accordingly, adjudicators must review the totality of circumstances when making a final determination of whether the employer-employee relationship exists.”

Mr. Neufeld also offered some insight as to the types of evidence the Service would view as related to establishing that an employer-employee relationship existed and would continue to exist throughout the duration of the requested H-1B validity period.  The press release on the USCIS website pointed out that such evidence would ” include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and/or relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client.”

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Immigration Reform – How Will it Happen?

On April 12, 2013, a bipartisan group of eight Senators unveiled legislation that offers the most radical change of the nation's immigration laws in nearly thirty years. Here is what they propose: At present, there are approximately 11 million illegal immigrants in this country. Most of them are hard-working people of good moral character, who have never been in trouble with the law. Such people could apply for a green card after 10 years of maintaining their good moral character, while in a provisional status, and then they will be able to file for naturalization (citizenship) in three years. Young people, who have benefited under the Dream Act provisions will be able to obtain green cards in five years, and be naturalized immediately thereafter.

It is proposed that such applicants will have to pay a $1,000 fine, have their income taxes paid for all of the years of their presence in the USA, learn English, maintain their employment and pass a criminal background check.

The proposed reform will cover all immigrants, who have arrived in the USA before January 1, 2012.
At the same time, the Border Security of the country will be improved by additional and improved fencing, hiring of 3,500 additional customs agents and new and improved surveillance drones. These efforts will primarily be directed at the southwest border with Mexico, where most of the illegal border crossings occur each year.The program will provide for additional funding to the DHS, if necessary, to ensure the most stringent measures of prevention of illegal border crossings into the USA. Also, a system will be put in place, to better monitor timely departures of all temporary foreign visitors or workers, so they would be prevented from overstaying their visas.

Within five years, all of the U.S. employers will be obligated to use the “E-verify” tracking system to make sure that all the workers they employ are legal residents. All legal resident non-citizen workers will be issued proper biometric documentation, to enable them to comply with the “E-verify” requirements.

It is planned, that employers who have large numbers of highly skilled engineers and computer programmers, working on H1B Visas will have to pay higher salaries, and higher government filing fees. At the same time, the Visa cap for highly skilled professionals would rise from 65,000 to 110,000, and then as high as 180,000 in future years.

A new visa program for low-skilled foreigners is planned to begin in 2015. At the start, only 20,000 visas per year will be available, but by 2019 the number of visas is proposed to increase to 75,000 per year. It is possible that the number of such visas will increase to 200,000 per year after the year of 2020. A new federal bureau will be created to analyze foreign guest-worker employment data. This program also allows for a “Safety-valve” for additional visas for workers, whose employers will pay higher wages. Agricultural workers will be limited to 337,000 visas over a three year period.

Family visa programs will undergo a tremendous overhaul. U.S. citizens and legal permanent residents will be equaled under the new law, and an unlimited number of visas will be immediately available to their foreign children, parents and spouses. Complete elimination of certain categories of visas eighteen months after the proposed law takes effect: those for foreign siblings of U.S. citizens and for married children over 30 years of age.

Instead of the Diversity Lottery system, employed at this time, a new merit-based point system is proposed for implementation. This system will do away with the randomness of the lottery, focusing instead on family ties and work skills of the applicants.

View the Gang of eight proposal.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Agreement Reached in National Class Action Lawsuit

Work Authorization for Asylum Seekers

The Department of Homeland Security is notoriously slow. Often times, asylum seekers have to wait for six months or more for a decision in their applications. What makes matters worse for these applicants, is that their employment authorization applications were frequently denied. These asylum seekers were unlawfully prevented from obtaining legal employment and providing support for themselves and their families, while waiting for the adjudication of their claims.

In December of 2011, a nationwide class action lawsuit was filed on behalf of the many deserving asylum applicants, challenging the issues of the “asylum clock”. The “clock” is the system the government uses to ascertain when asylum applicants may obtain their lawful employment authorization documents.

The advocates, representing the countrywide group of immigrants, asserted that the current system unlawfully denies asylum seekers the opportunity to be issued employment authorization documents, if the decisions in their asylum applications have been pending for six months or more. Many applicants end up waiting for months on end, or even for up to ten years for a decision to be made on their asylum application. Such situation was intolerable, because most asylum applicants have fled their home countries in fear for their lives, and without any financial resources, and have no means to support themselves and their families.

Ms. Mary Kenney, Senior Staff Attorney with the Legal Action Center of the American Immigration Lawyers Association said the following: “The settlement agreement includes significant changes to ensure that vulnerable asylum-seekers are no longer arbitrarily deprived of the ability to work while the government decides their cases,”

The settlement agreement, filed April 12, 2013 in a federal district court in Washington State, is awaiting a final approval of the judge overseeing the case. American Immigration Lawyers Association has made an this announcement yesterday, April 15, 2013.

View Press Release

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Where to File Hardship Waiver Applications

Creation of the two separate regulatory systems for hardship waiver applications established recently by the Administration’s promulgation of the Provisional Waiver regulations rendered many people confused as to where to file waiver applications for individuals who are NOT eligible for Provisional Waiver and intent to navigate the ordinary, well-established waiver rout.  People are especially confused because they are routinely told now that the U.S. consulate posts do not accept waiver applications any longer. As recently as yesterday, I received a call from a person from Georgia who, sounding very frustrated, complained of this confusion.

Historically, that is for the last almost a decade or so and until very recently, the procedure had been that determination of whether an immigrant visa applicant was indeed inadmissible and thus warranted a waiver, was supposed to be formally made by the U.S. consulate in that person’s country of residence. Once made, the applicant would be served with what is known as a rejection letter, stating that he or she were found inadmissible and that a waiver could be potentially available for that type of inadmissibility. The significance of this letter is hard to overstate. It is not so because it broke the bad news that the individual was found not desirable and thus could not be allowed into the United States. Instead, the letter would formally start the process of the waiver application. The waiver application would then need to be submitted at the same consulate and the fee paid there. The consulate responsibility then would be to transfer the application to the USCIS foreign post having jurisdictional power over adjudicationof the USCIS applications by residents of that country.

The situation has changed last year when USCIS announced that U.S. Department of State will no longer collect waiver applications. Instead, once rejection letter is received, the application along with the applicable fee would need to be forwarded to the USCIS designated processing facility inside there the United States. This change sparked a new procedure discussed in this blog entry and the confusion that ensured.  Currently, aliens, who are abroad of the USA and are applying for immigrant or K or V non-immigrant visas to the USA, but are found ineligible by the Consular Officers, have a new and more streamlined way of obtaining waivers of inadmissibility.  This change is not the same as the Provisional Waiver, and is distinct from it. Again, it only applies to individuals who are taking traditional rout and seeking waiver from abroad.

The waiver requests will now be sent to a Lockbox facility within the USA, and will be processed domestically.  Although the policies and standards for adjudications will remain unchanged, this change is implemented to provide a more speedy and consistent adjudication of such waivers, and it will enable the USCIS to diminish the backlog of waiver applications.  The applicants will be able to track the status of their applications online, at uscis web site  by using the website’s Case Status window.

The filings for the following forms will be affected:

I-601, Application for Waiver of Grounds of Inadmissibility

I-212. Application for Permission to Reapply for Admission in to the United States After Deportation of Removal

I-290B, Notice of Appeal or Motion, but only if referring to a denial of I-601 or I-212.

Addresses for the Lockbox facility:

For U.S. Postal Service:                                 

USCIS
P.O. Box 21600
Phoenix, AZ 85036

For Express Mail and Courier Deliveries:

USCIS
ATTN: 60½12 Foreign Filers
1820 E. Skyharbor, Circle S, Suite 100
Phoenix, AZ 85034 

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Bankruptcy and Citizenship

COMMON MISINTERPRETATION

Way too often, I run into a client who asks whether a Legal Permanent Resident is allowed to file for bankruptcy and more importantly, whether doing so would carry negative consequences for their potential bid for the US Citizenship through Naturalization process. This question comes from a common and widespread misconception, which is addressed in this article.

APPLICABLE LAW

One would be hard-pressed finding any direct reference to bankruptcy in our statutory and regulatory immigration system. There is simply neither a law nor regulation that directly forbids filing bankruptcy by a noncitizen, or views it as an immigration violation. Unless an LPR has failed to pay taxes, which is directly addressed in Part 1- Section A, questions 4 and 5 of the N-400 Naturalization Application, at which point it would be a problem, bankruptcy simply does not come up in any of the statutory text of the INA, nor it’s implementing regulations in the context of the naturalization or citizenship. The only context in which it does come up is employer suctions. OCARO (Federal Agency adjudicating employers’ compliance) takes the position that sanctions hearings fall under an exception to the automatic stay provision in bankruptcy. The Agency construes 11 U.S.C.· §362(a) to permit the enforcement of its regulatory and police authority in collecting against the employer when sanctions are imposed.

THE REAL QUESTION

So, the real question is whether bankruptcy can indeed play a role in adjudicating naturalization applications. It is unclear whether the Agency can take the fact of bankruptcy into account when doing so. USCIS is not particularly helpful on the issue as it has produced no policy guidance on the subject. Hence, the answer to this question is not very apparent and requires some analysis. INA §. 324(b) imposes upon an applicant for naturalization a requirement to prove good moral character during the last five years immediately preceding his or her application for naturalization. The implementing regulations empower USCIS to look beyond the five years, if anything in the applicant’s record opens the door for further inquiry.  This inquiry extends forward to the point in time when the applicant is naturalized and can go back for as far as the Agency would like it to go, if the record of the last five years does indeed warrant further inquiry.

USCIS makes good moral character considerations on a case by cases basis. This evaluation is committed to the broad Agency’s discretion. In adjudicating this issue the Agency takes into account the immigration laws in effect at the time of the adjudication, while looking at the facts from the standpoint of an average citizen in the community of the LRP’s residence. 8 C.F.R. § 316.10(a)(2). When viewed from this standpoint some acts including for example, willful failure or outright refusal to pay child support, are considered by the Agency as evidences of poor moral character. 8 C.F.R. § 316.10(b)(3). Hence, depending on the circumstances the case, the Agency, in the exercise of its broad discretionary powers, may deem filing for bankruptcy as evidencing poor moral character. In other words, there could be circumstances, when the applicant’s actions and financial decisions leading up to bankruptcy, may be consider so improper, negligent or even reckless as to suggest intent to defraud, foul play or outright fraud.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com