What is L1B Visa?

What is an L1B Visa?

The L1 visa category is a nonimmigrant work visa category for intracompany transferees.  It allows a U.S. employer to petition for certain foreign workers who work for a related foreign employer. There are two types of workers eligible for L1 classification.  L1A visas are for persons who will work in a managerial or executive capacity.  The L1B visa category is for those who will work in a “specialized knowledge” capacity.

L1 Classification in General

In order to petition for an L1B specialized knowledge intracompany transferee, the petitioner must be a parent, branch, affiliate, or subsidiary of the foreign employer.  Furthermore, the petitioner must be “doing business” in the United States and at least one other country through a parent, branch, affiliate, or subsidiary business.  Under certain cases, a petitioner may be opening what is called a “new office” in the United States.

The beneficiary of the L1B petition must have been employed continuously at the foreign employer continuously for one year within the three years immediately preceding the filing of the petition.

L1B Specialized Knowledge Capacity

Under section 214(c) of the INA, an employee who is serving in a “specialized knowledge capacity” either “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledges and processes and procedures of the company.”

Regulations in 8 C.F.R. 214.2(l)(1)(ii)(D) explain that the L1B beneficiary may have specialized knowledge of the petitioner’s “product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”

On August 17, 2015, the United States Citizenship and Immigration Services (USCIS) released a comprehensive memorandum titled “L1B Adjudications Policy (PM-602-0111)” that set forth rules for determining whether a person is working in a specialized knowledge capacity for L1B visa purposes.  The memo explained that “special knowledge” must be “distinct or uncommon” compared to the knowledge that would generally be found in the worker’s industry.  However, in a key point, the memo explained that the knowledge need not necessarily be uncommon in the petitioner’s organization.  However, if the worker is seeking status based on “advanced knowledge of processes and procedures of the company” rather than general specialized knowledge, the advanced knowledge must be uncommon in the petitioning organization as well.

The memo instructs USCIS adjudicators to consider whether (paraphrased):

• The beneficiary’s knowledge can normally be gained through experience with the petitioning organization;
• The beneficiary possesses knowledge of a product or process that is not easily transferrable;
• The beneficiary’s knowledge of a product or process is sophisticated, complex, or of a highly technical nature; and
• The beneficiary possesses knowledge that is particularly helpful to the competitiveness of the petitioning organization.

In supporting the eligibility of an L1B specialized knowledge worker, the petitioner must submit evidence regarding the effect the beneficiary would have on the petitioner, the qualifications of the beneficiary, and that the beneficiary’s knowledge can only be gained through experience or training with the petitioning organization.

A determination of eligibility will be made based on the weight of the evidence.  Thus, the evidence will be considered in the aggregate.

It is worth noting that a petition under an approved L1 blanket petition may only be filed for an L1B specialized knowledge “professional.”  For individual L1B petitions that are not filed under an L1 blanket petition, the specialized knowledge worker need not necessarily be a specialized knowledge “professional.”

Being on L1B Status

A person may be admitted in L1B status for an initial period of up to three years.  However, if the L1B specialized knowledge intracompany transferee is admitted to work in a “new office,” the initial period of admission may not exceed one year.  An L1B intracompany transferee may be approved for extensions in two-year increments for up to five years in the aggregate.  Under certain circumstances, time spent outside of the United States while on L1B status may be “recaptured” and added to the maximum five-year period of stay.  If an L1B employee’s duties change significantly while on L1B status, the petitioner will be required to file an amended L1B petition.  However, if an L1B specialized knowledge professional who gained status under a blanket petition is being transferred from one employer listed on the blanket petition to another, an amended petition will not be required so long as the L1B employee’s duties remain “essentially the same.”

An L1B employee is only authorized to engage in employment for the petitioner.  If he or she works “off-site,” the L1B employee must still be under the “control and supervision” of the petitioning organization and not of the unaffiliated organization.  It will be important for the petitioner to compile evidence showing that the arrangement meets this requirement.

Derivatives

The spouse or child of an L1B employee may be eligible for an L2 visa if otherwise admissible. Time spent on L2 status does not count toward the five-year limit on L1B status.  Therefore, it is possible for an L2 spouse to obtain a change of status to L1 (if otherwise eligible) and for the former L1B employee to obtain L2 status in turn.  An L2 spouse may apply for employment authorization but may not work without such authorization.  An L2 child may attend school full time incidentally to status.

Conclusion

The L1B visa category is an important work visa category for transferring foreign workers to the United States in nonimmigrant status.  Because the application process requires substantial evidence as to the petition beneficiary’s previous work and proposed duties in the United States, it is well advised that petitioners consult with an experienced immigration attorney for guidance through the application process and on questions that may arise regarding L1B workers in the United States.  L1B employees as well as L2 derivatives should consult with an experienced immigration attorney for questions regarding the maintenance of status, change of status, and adjustment of status.

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.

Resources and materials:

Alexander J Segal - "L1B Visa Overview", "Overview of Requirements for L1 and L2 Visas"

Lawyer website: http://myattorneyusa.com

Immigration Hardship

What is Extreme Hardship?

In order to procure certain waivers or other forms of immigration relief, an alien may be required to establish that a qualifying relative would incur “extreme hardship” were the applicant to be denied relief.  In limited cases, the alien may be permitted to satisfy the extreme hardship requirement by establishing that he or she would incur extreme hardship upon removal.

Forms of Immigration Relief that Require Showing of Extreme Hardship

The following is a list of forms of immigration waivers and immigration relief that require the establishment of extreme hardship or a related form of hardship:

• A waiver of the 3- or 10-year bar of inadmissibility for the accrual of unlawful presence requires that the waiver applicant establish that his or her U.S. citizen or lawful permanent resident (LPR) spouse or parent would incur extreme hardship were he or she to be denied admission.  See INA 212(a)(9)(B)(v).
• INA 212(h)(1)(B) provides for a waiver for several types of criminal grounds of inadmissibility.  In order to obtain a section 212(h) waiver, the applicant must establish that his or her U.S. citizen or LPR spouse, parent, or child would incur extreme hardship if the applicant is denied admission.  However, if the criminal offense that caused the inadmissibility was of a violent or dangerous nature, the applicant must meet a higher standard of “exceptional and extremely unusual hardship.”
• INA 212(i)(1) provides for a waiver for certain types of immigration fraud or misrepresentation.  In order to procure a section 212(i) waiver, the applicant must establish that his or her U.S. citizen or LPR spouse or parent would incur extreme hardship were the applicant to be denied admission.  If the applicant who is seeking relief is a Violence Against Women Act (VAWA) self-petitioner, the applicant may satisfy the requirement by establishing extreme hardship either to applicant or to a parent or child.
• INA 216(c)(4) allows for the Attorney General to remove conditions on permanent residency for an alien who obtained conditional permanent resident status without meeting the generally applicable requirements for the removal of conditions.  INA 216(c)(4)(A) and (C) require that the alien establish that he or she would incur extreme hardship if removed, but the circumstances causing such hardship must have occurred during the conditional permanent residency period.
• In order to be eligible for NACARA cancellation of removal or suspension of deportation, the applicant must establish that applicant’s removal would result in extreme hardship either to the applicant or to a U.S. citizen or LPR spouse, parent, or child.
• In order to be eligible for non-LPR cancellation of removal under INA 240A(b)(1), the applicant must establish that the applicant’s removal would result in “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child.
• In order to be eligible for special rule cancellation of removal as a battered spouse or child (VAWA cancellation of removal), the applicant must establish that either the applicant  or his or her parent or child would incur extreme hardship.  The factors causing the hardship may be particular to the abuse.
• Under INA 212(e), a certain J1 exchange visitors may obtain a waiver of the two-year foreign residency requirement by establishing that applicant’s U.S. citizen or LPR spouse or child would incur “exceptional hardship.”
• Under INA 101(a)(15)(T)(i)(IV), an applicant for T visa status as a victim of trafficking must demonstrate that he or she would suffer extreme hardship involving unusual and severe harm upon removal.

Extreme Hardship Factors

The most important administrative precedent for immigration extreme hardship is the Board of Immigration Appeals’ (BIA) decision in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999).  The decision addressed extreme hardship factors in the section 212(i) context, but its principles are generally applicable to all extreme hardship determinations.  The Board listed the following factors that should generally be considered in making an extreme hardship determination (paraphrased):

• Presence of qualifying relative’s family ties to the United States;
• Qualifying relative’s ties outside of the United States;
• Conditions of country where qualifying relative would relocate if the applicant is removed;
• Financial impact of the departure of the qualifying relative; and
• Significant health conditions of the qualifying relative.

Furthermore, the dissenting opinion in the Cervantes offered further factors that are also considered in extreme hardship cases (paraphrased):

• Qualifying relative’s family ties within and without the United States and the impact of separation;
• The economic and general conditions of the country to which the waiver applicant would be returned, and the effects of following on the qualifying relative;
• The financial, emotional, cultural, and political conditions of the country of return;
• The ability to raise children and other quality of life factors in the country of return;
• The qualifying relative’s length of residence in the United States;
• The qualifying relative’s age, health, skills, and employability as well as any other relevant factors.

It is important to remember that each case is unique.  The factors that may or may not be relevant in a given case will depend on its facts.  Accordingly, a determination will be made based on the totality of the circumstances.  Furthermore, merely demonstrating that the applicant (note that Cervantes addressed INA 212(i), which does not consider hardship to the applicant or to his or her child, whereas certain other forms of waivers and relief do allow such hardship to be considered) or his or her qualifying relative would incur extreme hardship is necessary, but not sufficient, for establishing eligibility for relief.  For example, in the INA 212(i) context, an applicant may meet the extreme hardship requirement, but the negative effects of his or her fraud or misrepresentation or other negative factors may nevertheless result in discretion being exercised against granting the waiver.

Victims of Violence

Certain persons seeking waivers as victims of violence or serious crimes may upon factors particular to their abuse in seeking an extreme hardship waiver.

For example, an applicant for T visa status must demonstrate that he or she would suffer “extreme hardship involving unusual and severe harm upon removal.”  While this standard is higher than regular “extreme hardship,” the applicant may appeal to factors particular to being a victim of a severe form of human trafficking in satisfying the burden of proof.

VAWA-self petitioners may also appeal to factors relating to harm incurred from their abuse in establishing the requisite extreme hardship.  For example, in the special rule cancellation of removal context, special factors that may be considered are the physical and psychological consequences of the abuse to the applicant and the effect on the applicant of the loss of access to U.S courts and the criminal justice system were the applicant to be removed.

Higher Hardship Standards

Cancellation of removal for non-LPRs requires that the applicant meet a higher bar of proof of “exceptional and extremely unusual hardship” in order to be granted relief.  Certain convictions for violent or dangerous criminal activities trigger this standard in the INA 212(h) context as well.  In the Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002), the Board granted cancellation of removal to an applicant based on extreme hardship to her U.S. citizen children.  The Board held that the applicant met her burden for a variety of reasons including that her children would be unable to adjust to life in the country of return, they were reliant on the applicant for support, the applicant’s mother (a U.S. citizen) who helped her support the children would not relocate, and the applicant would likely be unable to obtain status in the United States subsequent to her removal.

Conclusion

If an alien is seeking a waiver or other form of immigration relief, it is important to consult with an experienced immigration attorney.  When the establishment of some form of extreme hardship is required, an experienced immigration attorney will be able to assess the situation and determine whether it will be possible to compile evidence to make a compelling case toward satisfying the requirement.

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.

Resources and materials:

Alexander J Segal - "Extreme Hardship", "Matter of Cervantes and its Effect on Evaluating Extreme Hardship"

Lawyer website: http://myattorneyusa.com

H1B Process

What is an H1B Visa?

The H1B visa is for nonimmigrant workers in specialty occupations who have a bachelor’s degree or its equivalent.  In order to be eligible for an H1B visa, the alien must have a bachelor’s degree or higher in the specialty for which a visa is sought or experience in the specialty deemed equivalent to such degree. The H1B visa is also available for fashion models of distinguished merit and ability under distinct rules, which do not include the degree requirement.  In this article, we will examine the H1B process.

H1B Petition Process

The H1B petition is filed by the employer on the Form I-129, Petition for Nonimmigrant Worker. However, in order to have a Form I-129 approved, the employer must have a labor condition application (LCA) certified by the Department of Labor (DOL).  The purpose of the LCA is for the DOL to certify that the position is for a specialized knowledge professional employee and that the beneficiary of the petition would be paid the prevailing wage.  Form I-129 may not be filed for an H1B beneficiary more than six months before the proposed employment start date.  Furthermore, the Form I-129 must actually specify an employment start date.  The USCIS recommends being aware of the current DOL LCA processing times to ensure that the position is certified before the filing of the Form I-129.There is an annual cap of 65,000 available H1B visas each fiscal year.  The vast majority of H1B petitions are cap-subject.  There are limited cap exemptions or modifications:

• The first 20,000 accepted petitions for beneficiaries with a U.S. master’s degree or higher are cap exempt, any excess petitions in this category are placed with the pool of cap-subject applicants;
• Beneficiaries of petitions by “an institution of higher education, or related nonprofit entity” or by “a nonprofit research organization or governmental research organization” to engage in certain kinds of employment are cap exempt;
• 6,500 H1B visas of the 65,000 H1B visa cap are reserved for nationals of Chile and Singapore (however, such applicants will be required to demonstrate nonimmigrant intent).

Each fiscal year, USCIS begins accepting cap-subject H1B petitions and applications for beneficiaries with a U.S. master’s degree or higher on April 1.  This allows for an employment start date of October 1 in the same year.  USCIS will continue accepting petitions until the H1B cap is reached.  If the H1B cap is exceeded within the first five business days in which USCIS is accepting applications, USCIS will pick petitions from a lottery (this applies as well for the cap of 20,000 exempt petitions for beneficiaries with a U.S. master’s degree or higher).  In recent years, the USCIS has received vastly more than 65,000 and 20,000 petitions, respectively, during the first week of accepting applications. This means that an employer petitioning for an H1B worker should be prepared to file his or her Form I-129 on April 1.  It is important to note that filing a Form I-907, Request for Premium Processing Service, does not afford any special benefit for a cap-subject petition.

Because cap-exempt petitions are not subject to the H1B cap, they may be filed at any time provided that the requirements are met.

Amended H1B petitions or a Form I-129 filed for a beneficiary seeking to exercise H1B portability are never subject to the H1B cap.

Obtaining H1B Visa Process

If the beneficiary is not in the United States in a valid nonimmigrant status, he or she must obtain an H1B visa while abroad after the Form I-129 has been approved.  If the beneficiary is in the United States maintaining lawful nonimmigrant status, he or she may apply for a change of status to H1B using the Form I-539, Application to Extend/Change Nonimmigrant Status.  It is important to note though that the beneficiary may not commence employment until the change of status has been approved and until his or her H1B employment start date.

H1B Amended Petition Process

In certain cases, an employer may need to file an amended Form I-129 petition.  In general, this is necessitated if there is a significant change in the nature of the beneficiary’s employment.  Current USCIS rules require an amended Form I-129 to be filed if an H1B employee’s worksite location is changed such that a new LCA is required.

H1B Extension of Stay Process

H1B status may be granted for an initial period of 3 years.  It may be extended, but the H1B employee may not generally stay for more than six years in the aggregate.  In order to apply for an extension of stay, the petitioner must file a Form I-539, Application to Extend/Change Nonimmigrant Status on behalf of the beneficiary before his or her status expires.  Certain applicants with long-pending immigrant visa petitions and/or labor certification applications are eligible for extensions beyond six years.

H1B Portability Process

H1B beneficiaries are allowed to exercise what is called “H1B portability.”  Under this provision, an H1B employee may switch employers upon the new Form I-129 being properly filed on his or her behalf.  However, it is important to note that the new employer must meet the requirements of an H1B employer for the portability petition to ultimately be approved.  If the Form I-129 is denied, the new employment must cease.

Conclusion:  H1B Process

Petitioners for H1B workers are well advised to consult with an experienced immigration attorney. This is because it takes careful planning to ensure that an H1B petition is completed and filed in a timely manner in order to be considered for the current fiscal year.  Additionally, H1B employees should consult with an experienced immigration attorney for guidance on issues such as applying for a change of status, exercising H1B portability, or extensions beyond the six year limit (and applying for immigrant visas in general).

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.

Resources and materials:

Alexander J Segal - "Introduction to H1B Visas", "Enhanced H1B Portability", "H1B Higher Education Cap Exemption"

Lawyer website: http://myattorneyusa.com

What is I-129 Form?

What is the Form I-129?

The Form I-129, Petition for a Nonimmigrant Worker, is a form that is used for multiple purposes regarding nonimmigrant workers:

• Petitioning for a nonimmigrant worker in certain categories; 
• Requesting an extension of stay in certain nonimmigrant categories; and
• Requesting a change of status to certain nonimmigrant categories.

It is important to note that the Form I-129 is filed by the petitioner.  In certain cases, an agent may file the Form I-129 on behalf of the petitioner.  The filing fee for the Form I-129 is $325 as of September 4, 2016.

Applicable Categories

The Form I-129 is used to petition for a nonimmigrant worker in the following nonimmigrant worker categories:

• H1B
• H1C
• H2A
• H2B
• H3
• L1 (L1A and L1B)
• O1
• O2
• P1
• P1S
• P2
• P2S
• P3
• P3S
• Q1
• R1

The Form I-129 is also used to petition for an extension of stay in nonimmigrant status in any of the above nonimmigrant categories and for a change to any of the above statuses for an alien who is in the United States and maintaining a lawful status.  In addition to the foregoing nonimmigrant categories, the Form I-129 is used to petition for a an extension of stay in or change of status to one of the following nonimmigrant categories (but not for an initial grant of status for an alien who is not in the United States maintaining a lawful status):

• E1
• E2
• E3
• H1B1
• TN

In certain cases where there is a substantial change in the beneficiary’s employment, the petitioner will be required to file an amended Form I-129 for approval for the new employment situation.  The circumstances in which an amended Form I-129 may be required will depend on the facts of the specific situation and the nonimmigrant worker category in question.

A petitioner for an L1 nonimmigrant intracompany transferee under an approved L1 blanket petition (executives, managers, and specialized knowledge professionals) must file a Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, on behalf of the beneficiary.  If the petitioner is not seeking to confer status based on an approved L1 blanket petition, he or she must use the regular Form I-129.

Additional Information

As of September 4, 2016, the current edition of the Form I-129 is dated 08/13/15.  The United States Citizenship and Immigration Services USCIS) is still accepting the versions of the Form I-129 dated 03/26/15 and 10/23/14.  No other editions will be accepted.

The current edition of the Form I-129 is dated 06/02/16.  The USCIS will not accept any other edition of the Form I-129S.

The USCIS makes it a point of emphasis to remind petitioners to sign the Form I-129 or Form I-129S where indicated.  If the Form I-129 or Form I-129S is not signed, the petition will not be adjudicated.

Conclusion

The Form I-129 is an important form in the nonimmigrant worker context, as it is used to petition for nonimmigrant workers in a large number of nonimmigrant work visa categories.  Furthermore, the Form I-129 is used in these categories (and a few additional categories) for amended petitions, extension of stay petitions, and change of status petitions.  Because of this, the evidence required for a Form I-129 petition will vary widely depending on the nonimmigrant visa sought.  For example, the evidentiary and documentary requirements for a petition for the O1 category (Individuals with Extraordinary Ability or Achievement) will differ greatly from a petition in the H3 category (nonimmigrant trainee or special education exchange visitor).  An employer must carefully consult the Form I-129 instructions, which can be found on the USCIS website on the same page as the Form I-129 itself, to understand the documentary requirements for his or her petition.

Persons or entities seeking to petition for nonimmigrant workers are well advised to consult with an experienced immigration attorney for assistance in determining which nonimmigrant work visa category best suits his or her situation, and for guidance on properly completing the Form I-129 and all other requirements for an approvable application.

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.

Resources and materials:

Alexander J Segal - "The Premium Processing Service for Certain Form I-129 Petitions"

Lawyer website: http://myattorneyusa.com

USCIS Suggests AOS Applicants May Be Able to Use Filing Dates in Early FY-2017

At the beginning of the current fiscal year (FY), the Department of State (DOS) began publishing two charts for each immigrant visa preference category on the monthly Visa Bulletin. The first chart contains Filing Dates and the second chart contains Final Action Dates. In most categories, the Filing Date is significantly more recent than the Final Action Date. This means that when immigrant visa applicants are allowed to use the Filing Dates, they will generally be able to file for an immigrant visa significantly sooner than if they are restricted to the Final Action Dates. To learn more, please see the blog that I wrote at the time [see blog].

Within a few days of the posting of a Visa Bulletin, the United States Citizenship and Immigration Services (USCIS) determines whether it will accept adjustment of status applications based off of the Filing Date chart or the Final Action Date chart. USCIS's decision is based off demand for immigrant visas in conjunction with the annual cap on available visas.

In 2015, USCIS only allowed employment-based adjustment of status applicants to use the Filing Date Chart for October and November. However, the USCIS allowed family-sponsored adjustment of status applicants to use the Filing Date Chart each month from October to April. Since May, the USCIS has required adjustment of status applicants to use the Final Action Date charts.

The American Association of Immigration Lawyers (AILA) reported that in April of 2016, the USCIS indicated that adjustment of status applicants may again be able to use the Filing Date charts at the beginning of FY-2017 (beginning with the October 2016 Visa Bulletin). However, the USCIS was careful to note that this is not a certainty. Furthermore, even if USCIS decides to accept adjustment of status applications based on the Filing Date charts early in FY-2017, it may still be required to begin using the Final Action Date charts for the majority of fiscal year FY-2017.

An applicant waiting to be eligible to file for adjustment of status on the basis of an approved family-sponsored or employment-based preference petition should consult with his or her immigration attorney. An experienced immigration attorney will be able to assess the likelihood that USCIS using the Filing Date charts would allow an applicant to file for an adjustment of status early in FY-2016, and plan accordingly for that possibility.

See AILA Doc. No. 16082401

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

B1/B2 to F1/M1 Change of Nonimmigrant Status

Change of Nonimmigrant Status from B1/B2 to F1/M1

Persons in the United States on B1 (temporary visitor for business) or B2 (temporary visitor for pleasure) status are limited in the activities in which they can engage.  Among the prohibited activities for persons on B1 or B2 status is attending school as a student in the United Sates.

On the other hand, it is possible for a B1 or B2 nonimmigrant to apply for a “change of nonimmigrant status” while in the United States in lawful nonimmigrant status.  However, as we will explain in the article, a B1 or B2 nonimmigrant cannot count on having an application for change of status to F1 or M1 student approved unless he or she expressed such an intent in obtaining a visitor visa.

Challenge for Change of Status from B2 to F1/M1

While applying for change of status from B1 or B2 to F1/M1 sounds good in theory, there is a significant issue in practice.  That is, in obtaining a B1 or B2 visa, a visa applicant must explain the purpose of his or her temporary visit to the consulate (or in a change of status application to the United States Citizenship and Immigration Services (USCIS)).  The purpose of the visit must be consistent with the list of permissible activities on B1 or B2 status.  If a nonimmigrant visitor arrives in the United States and subsequently applies for a change of status to nonimmigrant student, it may call into question whether visitor was forthright in his or her intentions when applying for a B1 or B2 visa.  Under 8 C.F.R. 248.1(c)(3), a change of status application from B1 or B2 to F1 or M1 will be denied as a matter of course if the applicant began attending school before the change of status application was approved.

Additionally, the Department of State (DOS) has what is called the 30/60 day rule.  In effect, the rule means that if a nonimmigrant visitor behaves in a way inconsistent with the representations that he or she made in obtaining a visa, the DOS will presume that the visitor misrepresented his or her intentions at the time of entry (the presumption is rebuttable).  If the inconsistent behavior occurs between 30 and 60 days of entry, there will be no presumption of misrepresentation, but DOS may look at the case closely if the situation warrants it.  Both the DOS and the USCIS are vigilant about aliens using visitor visas to circumvent the normal procedures for applying for other nonimmigrant visas.  In Tsui v. Att’y. Gen. of the U.S., 445 F.Supp. 832 (D.D.C. 1978), a federal district court upheld the denial of a change of status from B2 visitor to F1 student because the evidence suggested that the aliens had entered under the pretext of tourism, but were actually intending students.  If a B1 or B2 visitor begins attending classes without the benefit of a change of status between 30 and 60 days of entry, the DOS will likely consider the student to have misrepresented his or her intentions at the time of entry.  The 30/60 day rule is not binding on the USCIS, and USCIS adjudicators may find that an alien misrepresented his or her intentions in obtaining a visa if the conduct in question occurs more than 60 days after entry.

If a B1 or B2 visitor is interested in seeking a change of status to F1 or M1 student, it is important to consult with an experienced immigration attorney for an evaluation of the situation.

Proper Procedure for Change of Status from B2 to F1/M1

It is possible to obtain a B2 visa with the intent of changing to F1 or M1 student status.  In applying for a B2 visa, the prospective student must state that this is his or her intention at the consulate.  In order to be granted a B2 visa under these circumstances, the prospective student must submit evidence that he or she will be ultimately eligible for the change of status to F1 or M1.  If the application is approved, the prospective student will be approved for a B2 visa marked “prospective student.”  It is important for a prospective student to properly represent his or her intentions in applying for the B2 visa.  This option may be appropriate for a prospective student who intends to use a B2 visitor visa to visit schools before applying for change of status.

Other Issues

In order to be approved for change of status from B1 or B2 visitor to F1 or M1 student, the applicant must meet the financial support requirement for F1 and M1 status.  If the applicant cannot meet this requirement, the change of status application will be denied because he or she would not be eligible for F1/M1 status.  This is significant in that demonstrating requisite financial support to engage in a course of study is distinguishable from demonstrating the ability to support oneself during a stay on B visitor status.

Conclusion

In an applicant wants to visit the United States as an intending student, he or she should consider applying for a B2 visa as an intending student from abroad.  If a B1 or B2 visitor wants to apply for a change of status to F1 or M1 student status, he or she should consult with an experienced immigration attorney for a full evaluation before applying.  It is important to note that so long as a person is on B visitor status, he or she is not permitted to engage in activities that would only be permissible as an F1 or M1 student.

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.

Resources and materials:

Alexander J Segal - "Change of Status from B Visitor to F1/M1 Student", "B1 Visas Unauthorized Employment V. Permissible Business Practices", "Student Visas"

Lawyer website: http://myattorneyusa.com

How to Fight Misrepresentation in Immigration Case?

Inadmissibility for Fraud or Misrepresentation of a Material Fact

Under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA), an alien who seeks to procure, has sought to procure, or procured any benefit under the INA by fraud or willful misrepresentation of a material fact, is inadmissible to the United States.  It is important to note that this inadmissibility provision only applies to fraud or willful misrepresentation of a material fact to obtain benefits under the INA.  While other types of fraud or misrepresentation may either have adverse immigration benefits (see e.g., false claim to U.S. citizenship (sec. 212(a)(6)(C)(ii)) of alien subject to final order of removal for certain types of document fraud (sec. 212(a)(6)(F)) or adverse immigration penalties stemming from criminal convictions for fraud).  Section 212(a)(6)(C)(i) inadmissibility for fraud or willful misrepresentation of a material fact is a particularly punitive inadmissibility ground because the inadmissibility does not go away with the passage of time.

Fraud or Misrepresentation Waiver Eligibility Under Section 212(i)

There is a limited-use waiver of inadmissibility of section 212(a)(6)(C)(i) in section 212(i) of the INA.

Section 212(i)(1) vests in the Attorney General the authority to waive section 212(a)(6)(C)(i) inadmissibility in the case of an “immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence” if the alien establishes that the refusal of his or her admission would result in “extreme hardship” to the U.S. citizen or LPR spouse or parent.  Section 212(i)(1) also extents to self-petitioners under the Violence Against Women Act (VAWA).  A VAWA self-petitioner will be able to establish eligibility for a section 212(i)(1) waiver if he or she demonstrates that the refusal of his or her admission would result in extreme hardship to him or herself in addition to his or her qualified U.S. citizen or LPR parent or child.  It is important to note that section 212(i) only applies to applicants for immigrant visas or adjustment of status with the lone exceptions of applicants for K and V nonimmigrant visas.

Finally, a waiver for fraud or misrepresentation of a material fact is discretionary.  Adjudicators may weigh negative factors pertaining to the applicant in deciding to not exercise discretion in the applicant’s favor.

Extreme Hardship

A waiver under section 212(i)(1) has an “extreme hardship” requirement.  “Extreme hardship” is an oft-litigated concept in immigration law, and a consultation with an experienced immigration attorney is always appropriate for determining whether the standard can be met in a given case.  For non-VAWA waiver applicants, the “extreme hardship” must be to a U.S. citizen or LPR spouse or parent. Although extreme hardship to a U.S. citizen or LPR child may be considered in the context of showing that the refusal of the alien’s admission would result in extreme hardship to the U.S. citizen or LPR spouse, extreme hardship to a child cannot form the basis of establishing eligibility for a section 212(i)(1) waiver.  A VAWA self-petitioner may meet the extreme hardship standard by demonstrating extreme hardship to him or herself or a qualified U.S. citizen or LPR parent or child. In a VAWA self-petitioning case, factors specific to the abuse incurred by the applicant may be considered.

Applying for a Waiver for Fraud or Misrepresentation under Section 212(i)

If the applicant is not in removal proceedings, he or she may file the Form I-601 with the USCIS in accordance with the form instructions.

If the alien is in removal proceedings, he or she may seek a section 212(i) waiver as a defense to removal.  The Administrative Appeals Office (AAO) may review the denial of a waiver by the USCIS, while the Board of Immigration Appeals (BIA) may appeal the denial of a waiver by an Immigration Judge (IJ).

Other Classes of Applicants Eligible for Fraud or Misrepresentation Waiver

The United States Citizenship and Immigration Services Policy Manual (USCIS-PM) lists other classes of applicants other than those described in section 212(i) who may be eligible for a waiver of inadmissibility for fraud or misrepresentation of a material fact.  This list is found in 9 USCIS-PM G.1(E):

• Temporary Protected Status (TPS) applicants (section 244(c));
• Applicants for admission as refugees (section 207);
• Refugees and Asylees applying for adjustment of status (section 209);
• Legalization applicants under section 245A;
• Special Agricultural Workers under section 210; and
• Applicant for entry as a nonimmigrant (section 212(d)(3); different rules for K, T, U, and V nonimmigrants).

Applicants for waivers who are applying for admission as refugees, applying for adjustment of status as a refugee or asylee, applying for legalization, or applying for status as a Special Agricultural Worker may procure a fraud or misrepresentation waiver if the granting of such waiver is determined to serve humanitarian purposes, promote family unity, or otherwise be in the public interest.

With the exception of K and V nonimmigrants (eligible for waivers under the section 212(i) rules) or U and T immigrants (must apply for a waiver with the USCIS), a nonimmigrant may apply for a waiver for advance permission to enter the United States under section 212(d)(3).  The waiver application will be adjudicated by the Customs and Border Protection (CBP).

Conclusion:  Waiver for Fraud or Misrepresentation of a Material Fact

An alien who is inadmissible for fraud or misrepresentation of a material fact to obtain an immigration benefit should consult with an experienced immigration attorney.  An experienced immigration attorney will be able to determine whether the facts of the alien’s situation suggest that he or she would be eligible for a waiver.  In the course of an application for a waiver, an experienced immigration attorney will be able to assist the alien in preparing a complete application to make a strong case to immigration adjudicators that they should exercise discretion in the applicant’s favor. Counsel is especially important for an alien who is in removal proceedings.

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.

Resources and materials:

Alexander J Segal - "Waivers for Fraud or Willful Misrepresentation of a Material Fact to Obtain an Immigration Benefit"

Lawyer website: http://myattorneyusa.com

How Long Does I-601 Take to Process?

Introduction

In order to obtain a nonimmigrant or immigrant visa, an alien must be admissible to the United States.  If an alien is inadmissible, he or she must generally file a Form I-601, Application for Waiver of Grounds of Inadmissibility.  If an alien who would otherwise be inadmissible obtains a waiver of the applicable ground(s) of inadmissibility, he or she will be one large step closer to procuring lawful immigration status in the United States.

Due to the number of immigration applications handled by the United States Citizenship and Immigration Services (USCIS), an applicant who files a Form I-601 or any other immigration form will have to wait for the application to be fully processed before receiving a final decision.  For applicants who have filed a Form I-601 upon which their eligibility for lawful immigration status in the United States depends, not knowing how long the processing will take can be stressful. Fortunately, the USCIS publishes statistics that may provide an applicant who filed a Form I-601 with a rough idea of when he or she can expect a final decision on the application.

Finding Average Processing Times

The USCIS posts average processing times for a variety of forms on its website.  While average processing times do not guarantee that a given application will be processed by a specific date, they may give a form filer an idea of when his or her application will be adjudicated.  In order to find the appropriate average processing time, the applicant must look up the USCIS Service Center or Office that is handling his or her application.  For the Form I-601, the most recent average Form I-601 processing times (as of the date of this article) at the California Service Center, Nebraska Service Center, and Texas Service Center are 4 months from the date of filing.

Applicants for provisional unlawful presence waivers who filed the Form I-601A, Application for Provisional Unlawful Presence Waiver, must look up the average processing timeframes at the National Benefits Center (NBC).  As of June 30, 2016, the NBC was processing cases initiated December 30, 2015.

The Administrative Appeals Office (AAO) handles appeals of Form I-601 denials outside of immigration proceedings.  The AAO periodically posts its average case processing time information. As of July 1, 2016, the average case processing time for the appeal of the denial of a Form I-601 is 6 months or less.

Conclusion

An applicant for a waiver of inadmissibility should consult with an experienced immigration attorney. Depending on the waiver being sought, the applicant may have to offer substantial evidence demonstrating that he or she is eligible for a waiver.  An experienced immigration attorney will not only be able to provide the applicant with professional guidance throughout the Form I-601 application process to insure that the application satisfies all requirements, but will also likely be able to give the applicant an idea of how long his or her waiver application process and broader visa application process may reasonably be expected to take.  It is important to properly file the Form I-601 to ensure that it is accepted for processing at all.  Where an applicant must file the Form I-601 will depend on the circumstances under which he or she is seeking relief.  The applicant should carefully follow all of the instructions on the Form I-601 with the assistance of immigration 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.

Resources and materials:

Alexander J Segal - "Estimated AAO Case Processing Times as of July 1, 2016", "Provisional Unlawful Presence Waivers Rules Taking Effect August 29, 2016", "Role and Structure of the Administrative Appeals Office AAO"

Lawyer website: http://myattorneyusa.com

What is a Waiver of Inadmissibility to the US?

What is Inadmissibility to the US?

Section 212 of the Immigration and Nationality Act (INA) contains various grounds of alien “inadmissibility.”  If an alien is found to be inadmissible, he or she may be ineligible for:

• Temporary Protected Status (TPS);
• Nonimmigrant status;
• Immigrant status; and
• Naturalization.

Furthermore, an alien who was inadmissible at the time of entry or at the time of adjustment of status is removable from the United States under section 237(a)(1).

Certain types of inadmissibility are either temporary in duration or they can be overcome by meeting certain requirements.  Other types of inadmissibility either attach for life or attach unless/until a waiver is obtained.  If an inadmissible alien intends to seek immigration status or fight immigration proceedings brought on account of inadmissibility, he or she will likely need to seek a waiver of inadmissibility.

What is a Waiver of Inadmissibility to the US?

Along with containing the INA’s inadmissibility grounds, section 212 of the INA also includes provisions for waivers of inadmissibility.  In general, and depending on the inadmissibility ground and the waiver sought, an alien may apply for a waiver of inadmissibility when seeking lawful immigration status (nonimmigrant or immigrant) or in the course of seeking relief in immigration removal proceedings.  The following are commonly used waivers available in section 212 of the INA:

• 212(i) – Waiver for inadmissibility for fraud or misrepresentation of a material fact to obtain immigration benefits;
• 212(h)(1)(B) – Waiver for inadmissibility for certain criminal or related grounds;
• 212(d) – Waiver for inadmissibility for several grounds of inadmissibility and ineligibility to receive a visa, including for document fraud;
• 212(a)(9)(B)(v) – Waiver for certain aliens subject to the 3- or 10- year bar of inadmissibility for the accrual of unlawful presence;
• 212(g)(1) – Waiver for inadmissibility for certain health-related grounds; and
• 212(k) – Limited waivers for inadmissibility/ineligibility for missing documentation.

Section 209(c) of the INA contains waiver provisions for asylees and refugees.

Certain waivers of inadmissibility will require the applicant to demonstrate that a qualifying relative would incur “extreme hardship” were  he or she to be refused admission to the United States.  These include section 212(i), 212(h)(1)(B), and section 212(a)(9)(B)(v).

Applying for a waiver of inadmissibility

Most applications for waivers of inadmissibility are made by filing the Form I-601, Application for Waiver of Grounds of Inadmissibility.  An application for a provisional unlawful presence waiver is filed on the Form I-601A, Application for Provisional Unlawful Presence Waiver.  Certain applicants who have been deported or removed may need to file the inadmissibility waiver application in conjunction with the Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  Although there is a fee associated with the Form I-601 ($585 as of August 26, 2016), a fee waiver may be requested with the Form I-912, Request for Fee Waiver (submitted with evidence that shows the alien is unable to pay the filing fee).

Asylees and refugees must apply for a waiver by using the Form I-602, Application By Refugee For Waiver of Grounds of Excludability.  There is no filing fee for the Form I-602.

The United States Citizenship and Immigration Services (USCIS) accepts fee waiver requests for the Form I-601 from the following applicants:

• VAWA self-petitioner;
• T visa applicant;
• Battered spouse or child of a U.S. citizen or LPR;
• Applicant for TPS;
• An alien for whom a determination that he or she would be a public charge under section 212(a)(4) is not required.

See https://www.uscis.gov/i-601 (special instructions for list of applicants who may request fee waivers as of March 9, 2016)

Seeking Waiver of Inadmissibility

If a person who is seeking immigration status in the United States or who is resisting removal is charged as being inadmissible, he or she should consult with an experienced immigration attorney immediately.  There is no catch-all rule for determining whether a person in a given case will be eligible for a waiver of inadmissibility.  Each case is fact-specific, and each will depend on many factors, including the following:

• Ground of inadmissibility (not all inadmissibility can be waived);
• Nature of the conduct that resulted in the person being inadmissible (if a waiver is available);
• Immigration benefit sought;
• Other circumstances that may weigh in favor or against the applicant; and
• Other relevant factors not listed here.

An experienced immigration attorney will be able to help an applicant determine whether a waiver of inadmissibility is available for his or her ground of inadmissibility in conjunction with the immigration benefit that he or she is seeking.  If there is, an experienced immigration attorney will be able to determine whether the applicant has a plausible path toward obtaining relief and, if so, to help the applicant put forward the best case for doing so.

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.

Resources and materials:

Alexander J Segal - "Waivers", "Extreme Hardship", "Waivers for Fraud or Willful Misrepresentation of a Material Fact to Obtain an Immigration Benefit"

Lawyer website: http://myattorneyusa.com

What is a Waiver in Immigration Law?

What is an Immigration Fee Waiver (USCIS)?

The United States Citizenship and Immigration Services (USCIS) require immigration fees for the processing of certain forms and services.  These fees help fund the USCIS’s operations.  In certain cases, the USCIS may allow an applicant seeking an immigration benefit to apply for an immigration fee waiver.  In general, an application for an immigration fee waiver is filed with the benefit application using the Form I-912, Request for Fee Waiver.  Alternatively, an applicant may also send a letter that includes the request for the waiver being sought along with all of the evidence required by the Form I-912.  If an applicant demonstrates eligibility for a fee waiver, his or her form or benefit request will be processed by the USCIS without fee.  If a fee waiver request is denied, the applicant will have to re-file the form or benefit request in accordance with the form instructions.

Before Filing an Immigration Fee Waiver Request

Before seeking a fee waiver, the applicant must make sure that he or she can even procure a fee waiver for the specific form or benefit sought.  The Form I-912 instructions as well as regulations found in 8 C.F.R. 103.7 contain the forms for which fee waivers may be sought.  There are certain forms for which an applicant may always seek a fee waiver, certain forms for which an applicant may seek a fee waiver depending on the benefit sought, and certain forms for which there are no fee waivers available.  In general, the following classes of applicants may apply for a fee waiver for any forms associated with their applications for status as a:

1. Battered spouse of A, G, E3, or H nonimmigrants;
2. Battered spouse or child of a lawful permanent resident (LPR) or U.S. citizen under section 240A(b)(2) in an application for VAWA cancellation of removal;
3. T nonimmigrant;
4. Temporary Protected Status (TPS);
5. U nonimmigrant; or
6. VAWA self-petitioner.

If the applicant’s form or benefit request is eligible for an immigration fee waiver, he or she may proceed to other considerations before deciding whether to file.

Rules for Immigration Fee Waivers

Section 10.9(b) of the Adjudicator’s Field Manual (AFM) lists the three ways in which an applicant may demonstrate that he or she is eligible for a fee waiver.  In general, these methods are listed in order of ascending difficulty:

1. Demonstrate that he or she is receiving a means-tested benefit (federal, state, or local);
2. Demonstrate “that his or her household income, on which taxes were paid for the most recent year, is at or below 150 percent of the Federal Poverty Level established in the most recent poverty guidelines”;
3. Demonstrate that the inability to pay is due to financial hardship caused by extraordinary circumstances or other circumstances.

In order to establish eligibility for an immigration fee waiver, the applicant must show through at least one of three methods that he or she is unable to pay the requisite immigration fee in question.  The easiest way for an applicant to establish eligibility is by showing that he or she is receiving a government means-tested benefit.  A means-tested benefit is a benefit that depends on the beneficiary’s income and resources.  For example, Medicaid is a “means-tested benefit” because entitlement  depends on a beneficiary’s income, whereas Medicare is not a means-tested benefit.

If the applicant is not receiving a means-tested benefit, he or she may establish eligibility by demonstrating that his or her household income for the most recent taxable year is at or below 150 percent of the most recent federal poverty guidelines.  If seeking to establish eligibility through this method, the applicant must carefully follow the rules on the Form I-912 instructions regarding who is counted as part of his or her “household” and ensure that sufficient evidence is submitted.

The final method for demonstrating eligibility for a fee waiver is by establishing financial hardship due to extraordinary circumstances or other circumstances.  The AFM provides a non-exhaustive list of examples of circumstances that may qualify an applicant for a fee waiver:

• Unexpected and uninsured (or underinsured) medical bills;
• Situations that could not normally be expected in the regular course of life events; or
• A medical emergency or catastrophic illness affecting the individual or the individual’s dependents.

If seeking to establish eligibility through this method, the applicant must carefully explain the “circumstances,” how they cause an “inability to pay,” and follow the evidentiary requirements in the Form I-912 instructions.

The applicant may submit evidence to establish eligibility for an immigration fee waiver in more than one category.  However, the applicant needs only to establish eligibility under one of the three grounds in order to be granted a fee waiver (e.g., if the applicant establishes that he or she is receiving a means-tested benefit, it is unlikely that the USCIS would proceed to consider evidence that he or she qualifies under the federal poverty guidelines ground in step two).

Additional Considerations

An applicant should only apply for a fee waiver if he or she is unable to pay the fee for one of the three reasons listed in the AFM.  Fee waivers are for the “inability” to pay and not for “difficulty” in paying.  This is important because if a fee waiver application is denied, the underlying form or benefit request will not be processed, and the applicant will have to re-file the application with the correct fee.  This is especially important to remember for applications that may be time-sensitive.  An applicant should always be aware of his or her overall immigration situation when considering an immigration fee waiver application.

A fee waiver request will be adjudicated separately from the form or benefit to which it applies.  This means, for example, if the evidence on the fee waiver application indicates that the applicant may be inadmissible or ineligible for the underlying benefit on public charge grounds (if applicable), the fee waiver application may still be granted on its own merits.  However, the underlying application may be denied on grounds of public charge.

Finally, if an applicant is found to have provided false documentation, misrepresented material facts, or committed other fraud in the fee waiver application, both the fee waiver and the underlying benefit request will be denied.  Furthermore, the applicant may be subject to further immigration or criminal penalties.

Conclusion

Whether an applicant is eligible for a fee waiver will depend on the form being filed or benefit being sought and on the specific facts of the applicant’s situation.  An applicant may benefit from consulting with an experienced immigration attorney regarding both his or her eligibility for an immigration fee waiver and whether his or her financial situation may call into question his or her eligibility for an immigration benefit or immigration 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.

Resources and materials:

Alexander J Segal - "Establishing Eligibility for a Fee Waiver with the USCIS", "Forms for Which a Fee Waiver May be Available"

Lawyer website: http://myattorneyusa.com

Election Issues and Immigration #4: The Porta-Potty Fire of 2016

A DUMPSTER FIRE OR SOMETHING ELSE?

Prior to the Republican National Convention, Republican Senator Ben Sasse of Nebraska, a prominent opponent of his party's then presumptive nominee, was asked whether he would attend the Convention. His spokesperson issued the following answer:

“Sen. Sasse will not be attending the convention and will instead take his kids to watch some dumpster fires across the state, all of which enjoy more popularity than the current front-runners.”[1]

We know not if the good Senator from Nebraska went on his dumpster fire appreciation tour during the Convention, but if he did, he surely got a warmer response than Senator Ted Cruz did when he told the assembled delegates to “vote your conscience.”

As I will explain, I concur with Senator Sasse's assessment of the 2016 election in part and dissent in part. To start us off, I must disagree that this election is a dumpster fire, as Senator Sasse and others have asserted.

Due to the extraordinary ineptitude of the two major party nominees and their campaigns, I cannot escape the conclusion that we must upgrade this election from dumpster fire status. The idea came to me when I came across an article about 100 porta-potties in San Francisco being set ablaze.[2]

The 2016 election is a porta-potty fire.

EVERYTHING IS TERRIBLE

For those who have kept up to date with my blog here at myattorneyusa.com, it should be no secret that I am not a fan of either Hillary Clinton [see blog] or Donald Trump [see blog].

I have covered my disagreements with Trump extensively over the past year. We have discussed Trump's ironic support for touchback amnesty [see blog], highlighted similarities in how Trump has exploited voter ignorance to how candidates on the other side such as President Obama and Bernie Sanders have done so [see blog], and even discussed how Trump's rise has brought some of the rotten and anti-Semitic elements of the Republican Party to prominence [see blog]. There can be little doubt that Trump is the worst Republican nominee of my lifetime, and it will forever perplex me that my fellow Republican primary voters chose the least qualified of seventeen candidates to represent the Party in such an important election.

However, I would not want anyone to think that my focus on in any way means that I consider Hillary Clinton acceptable. Clinton is running with the promise to continue the policies of the last eight years of the Obama Administration, which include the increasingly ill-fated effort to socialize medicine, moves toward amnesty and away from any semblance of immigration enforcement, and warming up to Iran while moving away from Israel and our other allies. This would all be bad enough if Clinton herself did not have extraordinary ethical questions for a major party Presidential nominee. It appears quite likely that she used her post as Secretary of State to curry influence for the Clinton Foundation while she now encourages the reversal of the Citizen's United Supreme Court decision, which was originally about a government policy banning a critical film about her. Then there is Clinton's email scandal, which can only be explained by willful negligence or gross misconduct.

NO GOOD OPTIONS ON IMMIGRATION

Because this is part of my series of blog posts on immigration and the election, I must highlight that both candidates are awful on immigration. For his part, Trump is a supporter of touchback amnesty [see blog] after originally attacking Mitt Romney in 2012 for not supporting the more garden-variety amnesty. Trump supported drastically increasing H1B visas in one of the Republican debates before again calling for a suspension of H1B visas hours later.[3] Trump recognizes that the current administration's refugee policies and unwillingness to vet applicants for immigration status for dangerous and un-American beliefs is a threat to national security, but has focused on making sensationalistic statements in lieu of actually articulating policies to help ensure that our immigration policies do not compromise American security. Our only hope with Trump would seem to be that, if elected, he would surround himself with competent conservative thinkers on immigration policy and be amenable to accepting their guidance on these important issues.

For her part, Clinton supports the President's illegal executive actions on immigration, most notably DAPA [see blog], and even pledges to expand them. She pledges to drastically curtail immigration enforcement by further limiting President Obama's already generous deportation priorities [see blog]. Clinton proposes admitting 60,000 refugees from the Syrian conflict without explaining how exactly she would do this in a safe way and why exactly these refugee admissions are in the national interest [see blog] rather than adjusting our policy overseas to help alleviate the chaos in the region. It is not at all reassuring when one's best hope is that a candidate will only be bad rather than catastrophic because the shift toward catastrophe can be accounted for by political expedience concerns.

DIFFICULT DECISIONS

It can be said that the best thing about Donald Trump is that he is not Hillary Clinton, and the best thing about Clinton is that she is not Trump. This leaves voters, and especially Republican voters not partial to the nominee, in a difficult spot.

A Democrat who is opposed to Clinton can at least take solace in the fact that the policies she would pursue as President will be liberal. Perhaps a disgruntled Bernie Sanders supporter will wish Clinton was even more radical while someone who is more concerned with Clinton's personal integrity issues would wish that she did not violate federal law in her handling of classified information, but both can be content with the conclusion that Clinton will not transmogrify into Senator Ted Cruz or Mike Lee upon taking the oath of office.

Conservative Republicans are in a more difficult situation with Trump. Trump's political identity has been, to put it mildly, turbulent. It is hard to find a single issue that Trump has been consistent on for the duration of his campaign, much less over the last forty years he has spent in the public spotlight. Just eight years ago, Trump's public statements were extremely supportive of Obama and Clinton, whereas now we are supposed to expect that he has suddenly found conservatism.[4] It is hard for a conservative to have great confidence that a President Trump would govern as a conservative given his inconsistent public statements and the fact that he has made at least as many overtures to Bernie Sanders supporters as he has to disaffected Republicans. The ideological concerns do not even reach his breathtaking ignorance on domestic and foreign affairs; although he is the foremost scholar on the so-called Article XII of the U.S. Constitution (there is none, to be clear).[5]

I am left with a difficult decision in this election: to vote for Trump or to abstain from the two major party candidates entirely. In his controversial speech to the Convention, Senator Ted Cruz, who was not my first choice but was my last choice in the Primaries, told conservatives to “vote your conscience, vote for the candidates up and down the ticket who you trust to defend our freedom and to be faithful to the Constitution.”[6] I do not have great trust in Trump to do either of those things, but I trust with absolute certainty that Hillary Clinton will not.

Clinton promises to continue the dreadful policies of the last eight years, appoint left-wing judges to the Supreme Court to transform it for a generation, and to continue our feckless appeasement abroad. The best Clinton promises is that she may be marginally less bad than Obama.

Trump may well live down to my worst expectations if elected. However, I believe that it is more likely than not that a President Trump will be better, or at least less bad, than a President Clinton. Trump will have access to the majority of the best conservative thinkers if he becomes President, and we can hope that holding the highest office in the land would humble him such that he recognizes what he does not know and accepts the counsel of those who do. Furthermore, it would be in a President Trump's best interest to stay on good terms with a Republican Congress, for it seems unlikely that Democrats would readily assist in anything that would make Trump more popular. Finally, if Trump were to stick to his proposed list of Supreme Court prospects, he would at least reestablish a conservative majority on the Court even if he disappoints in his other duties as President.

I concur with the noted libertarian law professor Ilya Somin at the Volokh Conspiracy blog that voting for the “lesser of two evils” is perfectly justifiable.[7] There are no easy answers when the election is a porta-potty fire, but it is too important for us to sit on the sidelines and watch the porta-potties burn. Unlike Somin, however, I believe that the lesser of two evils in this case is the Republican nominee, and not the nominee of the Democrats. My conscience tells me to be confident in neither, but it tells me that Trump offers the prospect, however slight, for something more. In a choice between too awful candidates, my choice is for the one who has the potential to improve the situation of my country. The ceiling for Clinton is so low that a President Trump does not need a high floor to be a better President than her. Therefore, with extreme reservations, I intend to vote for Donald Trump to be the next President of the United States.

To read more of my posts about immigration and the election, please see my blog post.

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.

1. Ernst, Douglas, “Sasse would rather 'watch some dumpster fires' than attend Trump nomination: Spokesman,” washingtontimes.com, (Jul. 7, 2016)
2. CBS SF Bay Area, “100 Porta-Potties Go Up In Flames At Hayward Storage Facility,” sanfransico.cbslocal.com, (Feb. 28, 2015)
3. Dinan, Stephen, “Trump quickly recants new stance on immigrant guest-workers,” washingtontimes.com, (Mar. 4, 2016)
4. Savransky, Rebecca, “Clinton launches ad using quotes of Trump praising her,” thehill.com, (Jul. 21, 2016)
5. Hughes, Siobhan, “Donald Trump's Pledge to Defend Article XII of Constitution Raises Eyebrows,” blogs.wsj.com, (Jul. 7, 2016)
6. Schroeder, Peter, “No Trump endorsement from Cruz: 'Vote your conscience',” thehill.com, (Jul. 21, 2016)
7. Somin, Ilya, “The logic of voting for a lesser evil,” washingtonpost.com/news/volokh-conspiracy, (Jul. 27, 2016)

Lawyer website: http://myattorneyusa.com