DHS Secretary Johnson Releases Statement on Southwest Border Security

INTRODUCTION: DHS DIRECTOR RELEASES STATEMENT ON SOUTHWEST BORDER SECURITY

On October 17, 2016, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a statement on southwest border security [link]. The statement includes border security statistics as well as notes about recent immigration events. Finally, because Secretary Johnson's tenure will likely come to an end with the conclusion of President Barack Obama's term in office, he offered his hopes for the future of immigration law and border security going forward. In this post, I will examine each of the three aforementioned parts of Secretary Johnson's statement on border security.

STATISTICS

Secretary Johnson's statement includes the following chart [see article] of southwest border apprehensions for fiscal years 2013, 2014, 2015, and 2016.

In total, 408,870 persons were apprehended trying to cross the southwest border illegally in FY-2016. While this was a marked increase from the 331,333 in FY-2015, it was slightly fewer than the 414,397 in FY-2013 and dramatically fewer than the 479,371 in FY-2014. 59,692 unaccompanied children were apprehended in FY-2016, making that the second highest number of the four years. FY-2016 also saw the largest number of family members apprehended at the border over the past four years. Conversely, FY-2016 saw far fewer individuals apprehended at the border in FY-2016 than in FY-2013 and 2014, although slightly more than in FY-2015.

Secretary Johnson explains that FY-2016 reflects a trend in apprehensions at the border. From the 1980s to 2008, the number of apprehensions at the border was far higher than the numbers seen over the years included on the chart [PDF version]. From 1983-2006, the number of apprehensions exceeded 1,000,000 19 times in 24 years, reaching its highest point with 1,643,679 in 2000.

For the years in which the numbers were the highest, there were many more families and individual adults from Mexico endeavoring to cross the border. However, the number of Mexican citizens attempting to cross the border has been in steady decline, in contrast with the growing number of Central Americans — especially families and unaccompanied children — apprehended over the past few years. Secretary Johnson explained that more Central Americans than Mexicans were apprehended for the first time ever in FY-2014, which happened again in FY-2016.

SECRETARY JOHNSON'S ANALYSIS OF THE SITUATION ON THE SOUTHERN BORDER

While overall illegal border crossings and apprehensions have decreased, the number of unaccompanied children from Central America apprehended presents immigration authorities with unique challenges in balancing immigration enforcement priorities with humanitarian considerations. Secretary Johnson explains that the latter includes “providing individuals with the opportunity to assert claims for asylum and other forms of humanitarian relief.”

To help alleviate the problems stemming from the influx of migrants from Central America, the DHS launched an initiative to make it easier for certain qualified applicants to seek refugee status while abroad instead of attempting to cross the southwest border illegally. Under this agreement, the government of Costa Rica will host a limited number of persons from Honduras, El Salvador, and Guatemala who may have their cases for refugee status considered by DHS officers [see blog]. Secretary Johnson also noted that the DHS has announced an expansion of the categories of individuals who are eligible for participation in the Central American Minors Program when accompanied by a qualified child [link].

In a report issued by the American Immigration Lawyers Association (AILA), it was noted that certain classes of asylum applicants who are in immigration detention have had a high rate of success in seeking asylum.[1] AILA explained that 87% of mothers and children detained in family detention centers in Texas and Pennsylvania were likely to be found eligible for asylum and other forms of humanitarian relief by an Immigration Judge [PDF version].

ENFORCEMENT PRIORITIES

In November of 2014, President Obama and Secretary Johnson announced the creation of new immigration enforcement priority levels [PDF version]. Secretary Johnson stated that 99% of those currently in immigration detention fit within one of the three enforcement priorities created in 2014. Of those in detention, 85% are within the top priority level. Secretary Johnson explained that 35% of those deported by the Immigration and Customs Enforcement (ICE) in 2009 were convicted criminals, but that number stands at approximately 60% thus far in 2016.

HAITIAN NATIONALS

Secretary Johnson observed that the DHS has seen an “influx of Haitian nationals” on the southern border. On September 22, 2016, Secretary Johnson announced that the DHS would resume removing Haitian nationals in accordance with the DHS's enforcement priorities [see blog]. However, on October 4, 2016, Secretary Johnson temporarily suspended removal fights to Haiti in light of the humanitarian crisis resulting from Hurricane Matthew [see blog]. Nevertheless, the Secretary's September 22 decision remains in effect, and the DHS is working with Haiti to resume removals to Haiti “in as humane and minimally disruptive a matter as possible.”

SECRETARY JOHNSON'S PROPOSALS GOING FORWARD AND MY THOUGHTS

Secretary Johnson stated that border security alone cannot deal with the factors causing so many Central Americans to attempt to cross the southern border illegally. Furthermore, Secretary Johnson stated, “Walls alone cannot prevent illegal migration.”

Regarding the first problem, Secretary Johnson noted that the U.S. government is making a “long-term investment in Central America” to address the underlying causes of the current migrant crisis. Secretary Johnson urged Congress to up the United States' investment in the region in FY-2017.

On the second point, Secretary Johnson encouraged Congress “to make smart investments in border security technology, equipment and other resources.”

Secretary Johnson stated toward the end of his section on the southwest border that “the system is broken.” To this effect, he urges Congress to pass “comprehensive immigration reform.” Secretary Johnson's contemplated comprehensive immigration reform includes “reckon[ing] with millions of undocumented immigrants who live in the shadows” by giving them “the opportunity to come forward and get right with the law.”

On the first two points, I generally agree with Secretary Johnson. While I will not opine on the specific amount or nature of the investment we ought to make in Central America, it is indisputable that the United States has a strong interest in the stability of the countries at the root of the current migrant crisis. In addition to assuaging the humanitarian situation, it is clear that the United States is spending significant money and resources on reckoning with migrants from Honduras, El Salvador, and Guatemala who are crossing the southwest border illegally. On the second, I concur with Secretary Johnson that it is important for Congress to equip the Border Patrol with new security technology and equipment, as well as to ensure that it has the staffing levels to properly execute its important duties.

On the last point, however, I disagree with Secretary Johnson. The Secretary proposes that we should pass a “comprehensive immigration reform” measure that allows undocumented immigrants “who live in the shadows” to come forward. While I am a proponent of legalization under the right circumstances for many of the people here illegally, the solution to a “broken” immigration system is not immediate legalization, as the Secretary seems to propose. . This approach was tried by the Congress and President Ronald Reagan in 1986, and it was ultimately unsuccessful. The better approach would be to pass “comprehensive immigration reform” laws and regulations that focus on improving border security, policing of overstays, and reorienting our priorities toward attracting and admitting highly skilled immigrants instead of being most conducive to family migration. Once the effects of implementing these reforms can be measured, and are found to meet certain success benchmarks, only then can move we move forward to determining the best way to create a legalization program that is fair, humane, and that will ultimately advance the American interests by allowing many of those here illegally to “come forward” while not incentivizing further violations of the immigration laws. Please see my comprehensive blog post on this issue in the context of the November 2016 elections to learn more [see blog].

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. AILA Doc. No. 16102501

Lawyer website: http://myattorneyusa.com

What is TPS Status?

What is Temporary Protected Status?

Temporary Protected Status (TPS) is a temporary immigration benefit available to certain nationals of countries that are designated by the Secretary of Homeland Security for TPS.  A country may be designated for TPS when the Secretary of Homeland Security determines that the conditions in the country render the country unable to handle the return of its nationals.

Although TPS is not a nonimmigrant or immigrant status, individuals on TPS may be eligible for employment authorization.  Additionally, an individual on TPS may simultaneously hold a nonimmigrant status and may also seek adjustment of status or any other immigration benefit for which the individual is eligible.

Rules for Eligibility for Temporary Protected Status

First, in order to be eligible to register for TPS benefits, an individual must be a national of, or an individual without nationality who last habitually resided in, a country designated for TPS.  In general, if an individual is admitted into the United States as the national of a country that is not designated for TPS, the individual may not rely upon having the nationality of another  country that is designated for TPS in order to qualify for TPS (see Genco Op. No. 92-34 (INS), 1992 WL 136973).  The Administrative Appeals Office (AAO) has generally interpreted the laws as only permitting individuals to rely upon their operative nationality in applying for TPS benefits.

Even if an individual meets the nationality requirements for applying for TPS benefits, he or she may not register at any time.  Rather, an individual may only apply for TPS during his or her TPS designated country’s open initial registration period or re-registration period.  The individual must have been physically present in the United States since the effective date of the most recent designation of his or her country for TPS.  “Brief, casual, and innocent” departures do not break continuous physical presence.  In order to be eligible to register for TPS during a TPS country’s late initial filing period, the individual must be a nonimmigrant, granted voluntary departure, or granted relief from removal; have a pending application for change of status, adjustment of status, asylum, voluntary departure, or relief from removal; have been a parolee or had a pending request for re-parole; or be the spouse of an individual who is eligible for TPS.  The unmarried child of an individual eligible for TPS at the time of the TPS designated country’s initial designation for TPS or re-designation for TPS is eligible even if the application for TPS is filed late.

If an immigration judge determines that an individual in removal proceedings is eligible for TPS, the immigration judge may close proceedings and direct the individual to apply for TPS.  

Ineligibility Grounds for Temporary Protected Status

The following are grounds that will render an individual ineligible to apply for TPS or unable to maintain TPS benefits:

• Having been convicted of a felony or two or more misdemeanors in the United States;
• Being found to be inadmissible to the United States under section 212(a) of the INA (but not section 212(a)(5) or (7)), including non-waivable or criminal grounds;
• Being subject to a mandatory bar to eligibility for asylum;
• Failure  to meet the continuous physical presence and continuous presence requirements;
• Failure to meet initial or late initial TPS requirements; or
• Failure to re-register for TPS benefits without good cause.

An individual considering applying for TPS should consult with an experienced immigration attorney for an assessment of whether any grounds apply that would call into question the individual’s eligibility for TPS benefits.

Applying for Temporary Protected Status

There are three forms that are required in every TPS initial registration or re-registration:

• Form I-821, Application for Temporary Protected Status
• Form I-765, Application for Employment Authorization
• Biometrics services fee (except for applicants under the age of 14) regardless of whether biometrics need to be taken (re-registrants will often not need to have biometrics re-taken)

Regardless of whether the TPS applicant is seeking employment authorization, he or she must file the Form I-765.  However, if the applicant for TPS benefits is not seeking employment authorization, he or she may file the Form I-765 without fee.

Because inadmissible aliens are ineligible for TPS, an applicant who is inadmissible under a waivable ground of inadmissibility must file the Form I-601, Application for Waiver of Grounds of Inadmissibility, in order to seek a waiver of inadmissibility.  The Form I-601 has a filing fee as well.  It is important to note that if a waiver of inadmissibility is granted for an applicant for TPS benefits, the waiver will only apply to the TPS application.  This means if the TPS beneficiary subsequently seeks a different immigration benefit for which his or her inadmissibility ground would apply, the TPS beneficiary would have to have the file for waiver of inadmissibility for that purpose.

If the applicant is unable to pay the filing fee for any of the forms associated with the TPS benefits application packet, he or she may seek a fee waiver by filing the Form I-912, Application for Fee Waiver, or by otherwise submitting a written request.  The fee waiver application must be supported by evidence of the applicant’s inability to pay.  Applicants seeking fee waivers are advised to apply for TPS benefits as soon as possible during the initial registration or the re-registration period.  This is because a  denial of a fee waiver request will require the applicant to resubmit the TPS benefits application packet with the requisite fees.  Such applicants will most likely be eligible to re-file slightly after the registration or re-registration period, if necessary, but only if the USCIS determines there is “good cause” for the late filing.  Such applicants are advised to re-file for TPS benefits within 45 days of the fee waiver denial.

The TPS application packet must be supported by evidence establishing the applicant’s eligibility for TPS benefits in accordance with the form instructions.

Adjudication of Temporary Protected Status Application

For applicants for an initial grant of TPS, the USCIS will schedule an appointment for the applicant at an Application Support Center for biometrics.  This step may be skipped in most re-registration cases where the previously-taken biometrics are reusable.

If the USCIS requires more evidence, it may send the applicant a Request for Evidence or a Notice of Intent to Deny.  It is crucial for the applicant to respond expeditiously to such a request in order to remedy the insufficiency in the application.

If the USCIS denies the TPS application, the applicant may file an appeal with the USCIS’s Administrative Appeals Office within 30 days of the denial of the application.  The appeal must be filed on a Form I-290B with fee.  However, the applicant may seek a fee waiver by filing a Form I-912 in lieu of the fee.  Applicants who are denied TPS on certain criminal or security grounds that are non-waivable for TPS purposes may be ineligible to appeal, although such applicants may seek review from an immigration judge instead.

If TPS is granted, the applicant will not only be approved for TPS, but will also become employment authorized if he or she sought employment authorization, and was approved for such authorization, in applying for TPS.

Maintenance of Temporary Protected Status

An individual with TPS benefits must re-register for TPS during each re-registration period.  Failure to re-register for TPS will render an individual ineligible to maintain TPS.  TPS beneficiaries must notify the USCIS of any change of address.  TPS beneficiaries must also procure approval to travel in the form of a grant of advance parole.  A TPS beneficiary who is granted advance parole and returns under the terms of such advance parole will be permitted to return to the United States in TPS status rather than as a parolee.

An interesting situation arises when a TPS beneficiary is authorized for employment due to TPS but is simultaneously maintaining a nonimmigrant status that restricts employment.  Under current USCIS policy, the individual must follow all of the rules of his or her nonimmigrant status to maintain such status (USCIS, FAQs:  Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306) (Sep. 3, 2015)).  As a result, for example, this means that an individual on both F1 student status and on TPS cannot maintain F1 student status if he or she uses the TPS employment authorization to engage in employment that would violate F1 student status.  In such a case, the individual would maintain his or her TPS but would have violated the F1 status.  An individual simultaneously maintaining TPS and status as a nonimmigrant should consult with an experienced immigration attorney for guidance on how to maintain both statuses.

Benefits of Temporary Protected Status

An individual maintaining TPS is shielded from deportation.  Furthermore, most individuals who are granted TPS will also be eligible for employment authorization if sought in the course of a TPS application.  TPS beneficiaries may apply for adjustment of status or change of status, and may be granted TPS even if holding a separate nonimmigrant status.  However,  a waiver of inadmissibility for TPS only cures inadmissibility for purpose of the TPS application.  TPS beneficiaries may apply for asylum, although the grant of TPS is not an element of proof for eligibility for asylum.

Temporary Treatment Benefits

If an individual who would be eligible for TPS seeks benefits outside of the registration period applicable to his or her country, he or she may be eligible instead for temporary treatment benefits.  If granted, temporary treatment benefits persist until a final determination of the individual’s eligibility for TPS is made.  The denial of an application for temporary treatment benefits does not prejudice a later application for TPS.

Advice

TPS is an enticing benefit for eligible individuals, offering legal status in the United States, relief from removal, employment authorization, and the ability to maintain a nonimmigrant status or change or adjust status.  It is important to remember, however, that TPS is a temporary benefit that may only last as long as the country in question is designated for TPS.  An individual seeking TPS or who is maintaining TPS should consult with an experienced immigration attorney for individualized guidance.

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 - "Temporary Protected Status TPS", "TPS and Dual Nationality When the Operative Nationality is that of a Non-TPS Country", "Using Employment Authorization from TPS While Holding Nonimmigrant Status"

Lawyer website: http://myattorneyusa.com

Immigration Issues and the Election #15: Reasons for Hope with President-Elect Trump and the GOP Congress

In this post, I will explain why I am optimistic about the 2016 election results, which swept Donald J. Trump into the Presidency of the United States and saw the Republicans maintain majorities in the U.S. Congress. To read my thoughts on how the election played out and some of the key races that I was watching, please see my companion post to this piece [see blog].

MY THOUGHTS ON THE RESULT

My blog posts here at myattorneyusa.com reflect my myriad concerns with President-Elect Trump on a variety of issues, both personal and political. I described the election between the President-Elect and Clinton as a “porta-potty fire” [see blog]. When I made my final endorsement, I was sure to reference my many concerns with the now President-Elect as a candidate [see blog].

That a person with severe character flaws and policy deficiencies went from a mere candidate to preparing to assume the Presidency of the United States in two months does not make all of my concerns about him disappear. To assuage my concerns, President Trump will have to prove capable as President. While we cannot be sure of what kind of President he will be until he takes office, there are a number of reasons, with my reservations granted, that I am excited about the election result and what we have in store for the next four years.

1. Elections Are Not Contested in a Vacuum. When there were better choices available than the President-Elect, I supported them. However, once Trump became the Republican nominee, I concluded quickly that the best option was to support his candidacy. President Barack Obama has, for eight years, weakened the United States abroad, exceeded his authority at home, and pursued disastrous policies on both fronts. With regard to immigration specifically, President Obama unilaterally enacted substantial deferred action programs without putting them through the proper administrative procedures or grounding them in his statutory authority [see blog]. Hillary Clinton ran promising not only to continue President Obama's disastrous policies, but expand upon them. I am relieved that she will not have an opportunity to do so. To say that President-Elect Trump isn't perfect is an understatement, but to say that he is far more likely than not to surpass the low bar set by the previous administration and promised by Clinton is grounded in reasonable analysis.
2. The Supreme Court. Had Clinton been elected, she would have likely had her choice for the replacement for Justice Antonin Scalia [see blog]. Fortunately, the Senate Republicans held their ground since the death of Justice Scalia and insisted that the next President, rather than President Obama, should be the one to pick his replacement. The gamble paid off to the extent that the Republicans held the Senate and won the Presidency. President-Elect Trump has promised to pick the next Supreme Court Justice from a list of very qualified conservative Judges. This pledge helped reassure me and many other skeptical conservatives to vote for him, and he owes it to the country to uphold his pledge. A conservative Justice to replace Justice Scalia will ensure that recent important decisions on political free speech, gun rights, and administrative procedure will be upheld. Furthermore, a President Trump will have the opportunity to fill federal courts across the country with qualified conservative judges, provided he surrounds himself with a team of good advisors for his judicial picks.
3. Access to Better Advisors. President-Elect Trump has not backed away from many of his disconcerting positions. He continues rail against free trade and seems to view foreign affairs as something to the effect of a protection racket. However, President-Elect Trump will now have access to the “best people,” as he likes to say, that the American right has to offer. It will be important to see if the President-Elect begins to surround himself with a better team of advisors during his transition, and whether we begin to see a shift in his discussion of these important issues that shows a greater depth of understanding than he has demonstrated thus far. Again, however, it must be noted that he has a very low bar to clear. While there are many reasonable concerns regarding Trump and Russia, for example, Eastern Europe has already been abandoned under President Obama. Israel has been treated with scorn by the Obama Administration, and may now look forward to more cordial relations, and less hectoring, under a Trump Administration. President Obama made one of the worst foreign policy blunders in recent memory in entering into the disastrous Iran Nuclear Deal, and President Trump has promised to chart a new course to attempt to undo the damage of the previous eight years.
4. The Republican Congress. While President-Elect Trump is not ideologically conservative, he has run as a Republican and generally shifted to the right from his long stint as a liberal Democrat. While the President-Elect cannot be entirely trusted by conservatives, we can certainly trust the Republican Senate and House. With Republican control of both houses, a President Trump should be less likely to be tempted to pursue a liberal agenda. Furthermore, Vice President-Elect Mike Pence should serve as an effective liaison between the White House and the Congressional Leadership, having once been part of the House leadership team himself. We should expect to see the GOP Congress to work quickly with President Trump to begin the process of repealing and replacing Obamacare and undoing the crippling regulations passed under the Obama Administration. To be sure, the President-Elect also campaigned on certain dubious proposals, like a one-trillion dollar infrastructure spending package. Furthermore, Trump has been entirely resistant to the concept of entitlement reform. While certain concessions will likely need to be made to a President Trump, it will be incumbent on the Republican leadership in Congress to work with Vice President-Elect Pence and the White House to chart a conservative course and temper a President Trump's more liberal inclinations on certain issues.
5. New Respect for the Constitution. It is possible that the prospect of a President Trump will chasten the Democrats. Over the previous eight years, Democrats have been cheerleaders to President Obama's executive overreach in the form of creative interpretations of regulations unmoored in statute, circumventing notice and comment rulemaking entirely, and effectively rewriting statutes when it was convenient for him to do so. This was all in the name of not only advancing a liberal policy agenda, but also in overcoming so-called Republican “obstruction.” We may expect that with the arrival of President Trump, the Democrats will rediscover their appreciation for the Constitution's limitations on the power of the executive, the separation of powers, and Congressional prerogatives. While I want to see a conservative agenda enacted, I would welcome such a shift from the Democrats. Congressional Republicans ought to join the Democrats in serving as a check on a President Trump, and let the Constitution, rather than short-term policy objectives, be their guide. If the prospect of a President Trump gives both parties a newfound respect for the Constitution and the separation of powers that could yield long-term benefits for American Government that would extend well past a Trump Administration. In 1992 and 2008, Democrats were elected to the White House with majorities in both houses of Congress. In 1994 and 2010, the Democrats were annihilated in the Congressional midterm elections. The President-Elect has certainly said things to raise questions regarding his understanding of the workings of the Constitution and restraints on the Presidency. If the Republican Congress serves as both a partner to and as a check on President Trump, the GOP will a long way toward avoiding the fate of the Democrats in the 1994 and 2010 midterm elections.

WHAT DOES THIS MEAN FOR IMMIGRATION?

Even subsequent to my announcement of my intention to vote for President-Elect Trump, I continued to express concerns regarding his immigration proposals. While he has shown improvement from the primary [see blog], the President-Elect has yet to show any serious understanding of immigration law and policy. He continues to advocate building a fantastical wall across the entire border with Mexico, a position that we should soon hope to see left behind. He has backed away from his proposals suggesting mass deportations, but it is unclear how he hopes to improve immigration enforcement policies and priorities. He has also backed away from his proposal to ban all Muslim immigration, instead adopting a more conventional position of seeking to restrict immigration in distinct categories from “countries of concern,” but it is not at all clear how he would designate countries of concern or improve vetting to identify individuals who pose a danger to the United States based on ideology. To this effect, a President Trump will likely suspend the Syrian refugee program, which is a position I support due to our inherent inability to properly vet such refugees [see blog].

While President-Elect Trump has suggested that he wants to reorient our immigration system toward attracting more highly skilled immigrants and away from family chain-migration, we have yet to see any proposals or suggestions for what he thinks such changes may look like. President-Elect Trump has pledged to rescind both DACA and DAPA, although it is unclear with regard to the former whether he will endeavor to work with Congress to replace it or offer a transition period to its beneficiaries. In any case, the election of Trump means that the judicial proceedings regarding DAPA and DACA+ will now be rendered moot [see blog].

Despite my concerns, I am hopeful that a President Trump will be better for immigration policy than President Obama has been. For one, Trump was elected in large part based on his promises for improved immigration enforcement. As the chief enforcer of immigration policy, there is much President Trump can do to this effect with the help of Congressional funding. It will be crucial to see who President Trump taps to be the Secretary of Homeland Security, Attorney General, and Secretary of State. President Trump's choices will go a long way toward showing how serious he is about improving our immigration system.

It is unclear whether a President Trump will seriously prioritize immigration reform in addition to seeking to improve enforcement. However, as someone who supports improving enforcement before addressing legalization, I am hopeful that as President, Trump will maintain his similar position on this issue and demand that Congress assist him with funding and legislation to improve enforcement before discussing legalization [see blog]. If a President Trump uses his leverage correctly, he could offer pro-immigration reforms for employment-based nonimmigrants and immigrants and the willingness to accept a legislative replacement for certain aspects of DACA as inducement to the Democrats, who are likely to be wary of a more conservative approach to immigration reform that does not promise immediate legalization.

However, there are many questions outstanding regarding what President-Elect Trump's approach to immigration will be, and where it falls as a priority for the Congressional leadership. For example, it is quite possible that the Congressional Republicans may use funding for new enforcement measures as a way to resolve an impasse with a President Trump on a different issue. It will be important for us to watch what President-Elect Trump says regarding immigration policy in the coming weeks, his selections for advisors and cabinet officers, and any statements from the Congressional leadership of both parties regarding immigration policy.

FINAL NOTES

Throughout the election, I have watched Donald J. Trump first with mortification and second with hope. Some supported him enthusiastically, some like me supported him reluctantly, and others vehemently opposed him. The American people have spoken through the electors, and they have decided that Donald J. Trump will be the 45th President of the United States. It has been heartening to see President Obama handle the beginning transition with the same graciousness and dignity that was afforded to him by President George W. Bush in 2008, and a testament to our republic that we appear to be headed for another smooth transfer of power. It is important for all of us, supporters and opponents, to follow President Obama's example in welcoming President-Elect Trump to the White House and wishing for his success. It will be incumbent on the soon-to-be President Trump to prove that he is an able President and earn the support of the American people, but the office he was elected to commands respect regardless of the occupant, and the decision of the American people should be recognized and accepted. Regardless of disagreements, we must have no patience for rioters, flag-desecraters, those who smear all of those who voted differently as bigots or traitors, and finally, those who refuse to accept the results of an entirely legitimate and free and fair election.

That being said, respect for the occupant of the Oval Office must be earned, not given. During the campaign, President-Elect Trump often conducted himself boorishly and made a number of incendiary and outrageous statements. His conduct early in the primary was such that I, a self-identified loyal conservative and Republican, was unsure if I would be able to support him were he to become the nominee [see blog].

Now that President-Elect Trump has been entrusted with the most important office in the most powerful country in the world, he must shift from his campaign posture to preparing to undertake the awesome responsibilities of the American Presidency. In his autobiography, our 30th President, Calvin Coolidge, wrote the following:

“The words of the President have an enormous weight and ought not to be used indiscriminately.”

President-Elect Trump could find Coolidge's wise quote pertinent in two ways.

Firstly, a President Trump must stay away from Twitter and from petty insults directed as opponents. He is no longer responsible for himself and his brand alone, but for a country of over 300 million people. The words of the President have weight that the words of a private citizen do not, and it will be telling to see the extent to which President-Elect Trump understands this.

Secondly, President-Elect Trump has a responsibility to address some of the rhetoric he wielded in the primary. He must reassure people that as President, he will seek only to enforce the laws fairly and impartially as they are written, with his Constitutional responsibilities and the safety and liberty of the American people at heart. Merely intending to do so is not enough. Many individuals were personally frightened and offended by some the President-Elect's more outlandish statements during and prior to his campaign, and, regardless of his actual intent, it cannot be said that this was always without basis in his words. Many of Trump's supporters feared, with ample justification, that a President Clinton would threaten their freedom of speech, freedom of association, religious liberty, and the right to bear arms. It is important to recognize that many of Clinton's supporters fear that a President Trump will enforce the law disparately based on race or religion, and that he devalues people based on these characteristics or based on sex. President-Elect Trump showed graciousness in his victory speech and in his meeting with President Obama. It would be highly encouraging to see the President-Elect take responsibility for many of his more indefensible statements, and work to calm the fears of many Americans who felt alienated by his campaign between now and his inauguration.

Beyond it being the right thing for President-Elect Trump to do, working to address the alienation that his campaign caused for many good Americans will show that he and the Republicans are ready to not only take advantage of the Democrats having alienated large swaths of the electorate over the previous eight years, but also that they intend to not repeat the same mistakes.

I have enjoyed writing this series of blog posts about immigration issues and the election, and I hope that you have found the posts interesting, thought-provoking, and perhaps, on occasion, provocative. With the elections complete, we will have plenty more to blog about regarding immigration, law, and politics in general as we await the inauguration of President-Elect Trump and the new Congress. Please see my opening blog post in the series for a directory of all of the previous posts that I wrote [see blog].

In the spirit of moving on from a contentious election, I will leave you with a second passage from the autobiography of Calvin Coolidge:

“It would be exceedingly easy to set the country by the ears and foment hatreds and jealousies, which, by destroying faith and confidence, would help nobody and harm everybody.”

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

What is EB5 Visa?

What is the EB5 Preference Category?

The employment-based fifth preference category (EB5) is for immigrant investors.  Each year, a limited number of immigrant visas may be allocated to qualifying immigrant investors. Recipients of immigrant visas in the EB5 category will be subject to a two-year conditional permanent residency period, and will be required to apply for the removal of conditions before the conditional permanent residency period expires.  An immigrant investor may also afford derivative status to his or her spouse and unmarried children.  Unlike many other employment-based preference cases, a person seeking an immigrant visa in the EB5 preference category may self-petition.

The EB5 program was created to incentivize persons to make substantial investments in the United States in return for the benefits of permanent resident status.

10,000 immigrant visas in the EB5 category may be awarded each year.  3,000 such visas are set aside for those seeking EB5 visas through the Regional Center Pilot Program.

What Kind of Investment Qualifies?

There are very specific rules for the types of investments that may qualify an individual for status through the EB5 preference category.  The individual may invest privately in a new commercial enterprise, invest privately in a troubled business, or invest in an approved regional center under the EB5 Regional Center Pilot Program.  In the subsequent sections, we will briefly examine each of these three modes of investment that may qualify an individual for EB5 status.

Private Investment in a Commercial Enterprise or Troubled Business

An individual may seek an immigrant visa through the EB5 process by investing to:

• Establish a new commercial enterprise;
• Purchasing an existing commercial enterprise and subsequently restructuring or reorganizing the commercial enterprise such that a new commercial enterprise results; or
• Expanding an existing business by 140% of the pre-investment number of jobs or net worth, or by retaining all existing jobs in a troubled business that has lost 20% of its net worth over the past one to two years.

A commercial enterprise is defined by the United States Citizenship and Immigration Services (USCIS) as including any for-profit activity that is “formed for the ongoing conduct of lawful business” (see PM-602-0083).

A “troubled business” is defined by regulations found in 8 C.F.R. 204.6(e) as a business that has been in existence for at least two years, has incurred a net loss for accounting purposes during the twelve- or twenty-four- month period prior to the priority date on the alien entrepreneur’s immigrant visa petition, and that the loss for such period is at least equal to 20% of the trouble business’s net worth prior to such loss.

In order to for the investment to qualify, the alien investor must invest at least one million dollars into the business venture in the United States.  However, this requirement is lowered to half-a-million dollars if the investment is made in what is called a “targeted employment area” (TEA).  A “TEA” is defined as a locale that has experienced unemployment of at least 150% of the national average rate, or a rural area.  3,000 EB5 visas are designated annually for investments in TEAs.

The investment must create at least ten full-time work opportunities.  If the investment is being made in a “troubled business,” it must maintain the number of existing employees at no less than the pre-investment level for a period of two years.  For an investment in a troubled business, at least ten jobs must be maintained.  The jobs of the investor or his or her immediate family cannot be included in this calculation.  However, positions for permanent residents and other non-resident aliens who are authorized for employment in the United States are counted.  The investor will be required to submit a detailed business plan with regard to this requirement in seeking a visa in the EB5 preference category.

The funds for the investment must have been lawfully obtained by the investor.  The investor will be required to submit documentation establishing the source of his or her investment funds.  The investor must establish that his or her investment will benefit the U.S. economy by providing goods and services.  Finally, the investor must establish that he or she will be involved in the day-to-day management of the commercial enterprise.  This means that merely investing the requisite funds in a qualifying commercial enterprise is not sufficient for establishing eligibility for an EB5 visa.

In the above cases, the investment funds do not necessarily need to be paid up-front.  Although the best method may differ from case to case, an individual may generally pay one-third of the total requisite investment upfront, and may accumulate the rest while the business is operating.  However, in all cases, the EB5 petition must establish that the investor’s own funds will be at risk and that he or she has a plan and the wherewithal to meet the investing requirements.

EB5 Regional Center Pilot Program

An individual may seek an immigrant investor visa through the EB5 Regional Center Pilot Program. Although investing in an EB5 Regional Center is similar to other EB5 investments, there are certain key differences that have advantages and disadvantages relative to other EB5 investments.

Firstly, the investment must be made in a designated EB5 Regional Center.  The USCIS regularly updates the list of qualifying EB5 Regional Centers.  Secondly, jobs created as a direct result of the investment or as an indirect result of the investment are counted toward the job creation requirements.  In many cases, this may make meeting the job creation requirements easier than it would be with non-Regional Center investments.  Finally, the investor is not required to be involved in the day-to-day operation of the business, thereby freeing the investor to pursue other business ventures.

However, an investment in an EB5 Regional Center must be made in full up-front.  This is distinct from non-Regional Center investments where the investment may be made in stages.  Furthermore, the investment must be made in a single commercial enterprise, and cannot be made directly in unrelated entities.

Application Process and Removal of Conditions

An individual seeking an EB5 visa must file his or her petition on the Form I-526, Immigrant Petition by Alien Entrepreneur.  If the petition is approved, the individual may file for an immigrant visa abroad or adjustment of status from within the United States when an immigrant visa number is available.

Within 90 days of two years from the date the individual becomes a conditional permanent resident, the individual must apply to have the conditions removed from his or her permanent resident status. The application is filed on the Form I-829, Petition by Entrepreneur to Remove Conditions.  The evidence submitted with the Form I-829 must establish that the investor had made the requisite investment, is actively in the process of investing the funds (or has invested them in the Regional Center context), and that he or she has sustained the investment for the two-year period.  The evidence must also establish that the investor has met or is on pace to meet the job creation requirements (or in the case of a troubled business, that the investor has maintained the requisite number of jobs).  The investor’s dependent spouse or children may have the conditions removed from their permanent resident status along with the investor.

Conclusion

Petitioning for immigrant investor status through the EB5 program is an extremely complicated and document-intensive process.  Prospective investors should consult with an experienced immigration attorney before taking actions toward seeking permanent resident status through the EB5 program. An experienced immigration attorney will be able to assess the immigrant investor’s overall situation and proposed investment and determine whether the investor will be able to file an approvable petition for an EB5 visa.  If so, an experienced immigration attorney will be able to guide the immigrant investor through the petitioning process and help him or her determine the best way to make the qualifying investment.  An experienced immigration attorney should also be consulted in the petitioning process for the removal of conditions.

For investors who cannot meet the EB5 requirements, there may be other immigration options available.  For example, the E2 treaty investors visa provides a nonimmigrant path for investing in the United States for aliens from qualifying countries.  Certain other immigrant and nonimmigrant employment-based visa categories may be conducive to making investments in the United States.  An experienced immigration attorney will be able to assist an alien in determining which immigration method is best for meeting his or her investment or business goals.

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 - "EB5 Investor Visa Program", "Investment Immigration"

Lawyer website: http://myattorneyusa.com

Election Issues and Immigration #14: Analysis of the 2016 Election Result

November 8, 2016, will be forever remembered in American history as the day that Donald J. Trump became the President-Elect of the United States, defeating Hillary Clinton in what was perhaps the most dramatic upset in a Presidential election since President Harry Truman defeated then New York-Governor Thomas Dewey in 1948. When President-Elect Trump takes the oath of office on January 20, 2017, he will be welcomed by barely-reduced Republican majorities in the U.S. Senate and U.S. House. Furthermore, although we will not discuss it in this post, the Republicans expanded their majority in state Governor Offices (the GOP now controls 34-35 of the 50 Governor offices) and the state legislatures.

I joined many Republicans in fearing the worst when President-Elect Trump became the presumptive nominee on May 3, 2016. This was both because of reservations about the nominee and fears that his presence at the top of the Republican ticket would lead to substantial losses down-ballot. Instead, voters across the country voted for Republicans up and down the ballot, leaving the Republican Party in its most commanding position since the Herbert Hoover administration and the Democratic Party in the political wilderness.

In this article, I will offer my analysis of the election result. In my companion post, I will provide my analysis of what the comprehensive Republican victories mean on a variety of issues going forward [see blog].

ANALYSIS — WHAT HAPPENED?

Although polls in the Presidential election tightened in the final two weeks, the evidence indicated that Hillary Clinton was the favorite to claim the White House. This was because many of the apparent true toss-up states — Florida, Iowa, and North Carolina — were all necessary but not sufficient for a Trump victory. Meanwhile, even if the current President-Elect were to sweep those states, he would still have to hold close states such as Ohio and Arizona and pick off states that appeared to be leaning toward Clinton. While hoping for the best, I feared what a Clinton victory may mean for the Senate, where the Republicans faced the difficult task of defending 24 of the 34 seats up for election.

President-Elect Trump's victory was predicated upon dramatically exceeding expectations in the Midwest. Having carried Florida and North Carolina, it was incumbent upon Trump to break Clinton's proverbial firewall in the Midwest, where he had appeared to be competitive but lagged in the polls. President-Elect Trump won decisively in two Midwestern states — Ohio and Iowa — where he had been favored. However, he also carried Pennsylvania and Wisconsin, two states that had not fallen into the Republican column since George H.W. Bush's landslide victory in the 1988 Presidential election. Furthermore, it appears that Trump has also carried Michigan, another Midwestern state that Republicans had not won in a Presidential election since 1988.

Early in his campaign, Trump claimed that he would be able to win over the so-called “Reagan Democrats,” people who vote Democrat but may have a natural home with the Republican Party. Although I questioned whether it was possible, the President-Elect delivered on one of his campaign promises, substantially out-performing previous Republican nominees in rural and less populated areas across the Midwest (including in Minnesota where Trump had a strong performance but came up slightly short).

An interesting blog post courtesy of philly.com explained the unique appeal of the President-Elect in Pennsylvania [link].[1] In Pennsylvania, both Trump and incumbent Senator Pat Toomey emerged victorious. The post explains that Toomey dramatically out-performed Trump in the Philadelphia suburbs while Trump performed substantially better than Toomey in the rural and less populated areas of the state. It quotes Toomey's campaign manager, Mark Harris, as stating, “We did it the way Republicans have done it for the past 20 years.” Regarding Trump, Harris observed that “Trump found a new way.” Political scientists will certainly have plenty to study in the Pennsylvania results, where the two most prominent Republicans on the ballot assembled different coalitions of voters to narrowly claim victory in the state. Many Republican-leaning voters who were alienated by Trump still voted for Senator Toomey, a notable Trump non-endorser, whereas many voters who do not typically vote Republican turned out for the President-Elect, but not for Senator Toomey.

The Congressional races provided good news for Republicans and conservatives backing Trump and those who chose a different path regarding the Presidential race. Republicans managed to hold their losses in the Senate to two — Senators Mark Kirk of Illinois and Kelly Ayotte of New Hampshire — in maintaining the Senate with either 51 or 52 seats (it will likely be 52 after a runoff election in Louisiana next month). Republicans prevailed in Florida (Marco Rubio), Pennsylvania (Toomey), and Wisconsin (Ron Johnson), three of the four races I highlighted in my endorsements blog [see blog]. Republicans also won seats in competitive races in North Carolina, Missouri, Indiana, and Arizona. Former Presidential candidate Rand Paul also captured a second term in his race in Kentucky [see blog on Paul]. Unfortunately, the Republicans missed their only pickup opportunity in the cycle, where Congressman Joe Heck, who I highlighted in my endorsements blog, was narrowly defeated. However, I am certainly happy with the results in the Senate races. The elections for the U.S. House were no less successful, with the Republicans sustaining a substantial majority in the lower chamber with negligible losses.

HOW DID TRUMP WIN IF MORE PEOPLE VOTED FOR CLINTON?

Many people are wondering how Donald Trump is the President-Elect when Hillary Clinton received more votes. This is because the President is not elected by the people, but rather by electors sent by each state to the Electoral College. While electors from certain states are able to cast their votes for a person other than the winner of the plurality of the popular vote in the state, electors almost always follow the preference of the people of the state [see blog]. In this election, it appears that President-Elect Trump may have lost the popular vote (we will not know the final result for a few more weeks) while winning a clear majority in the Electoral College. Many may recall that the same happened in the 2000 Election, where George W. Bush narrowly won the Electoral vote while narrowly losing the popular vote to Al Gore. Both sides were aware of the rules going into the election, and that is why we saw Hillary Clinton concede defeat on election night and then deliver a gracious concession speech the next day.

Because this is an interesting issue, I will post a blog in the near future addressing the Electoral College and why I think it is the best way for the United States to choose Presidents.

CONCLUSION

The 2016 election season was as fascinating as it was contentious. While I hoped for a positive result for the Republicans, I was surprised by the comprehensive nature of the Republican victory. To read my thoughts on what the result means, please see the final post in my series on immigration issues and the election [see blog]. Please see my introductory blog post for a directory of other posts from this series [see blog].

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. Tamari, Jonathan, “How Pat Toomey and Trump diverged on their paths to victory,” philly.com, (Nov. 10, 2016)

Lawyer website: http://myattorneyusa.com

What is L1 Blanket Petition and Who May Apply for L-1 Blanket?

What is an L Blanket Petition?

The L visa for nonimmigrant intracompany transferees allows U.S.-based employers to petition to transfer certain alien employees from related foreign entities to work in the United States.  In general, a petition for an L nonimmigrant is filed for a single beneficiary. However, certain petitioning entities may be eligible to petition for multiple foreign employees under what is called an “L blanket petition.”  If a petitioner gains L blanket approval, it will become far easier to transfer large numbers of L nonimmigrants to work in the United States.

What are the Petitioner Requirements for L Blanket Approval?

The petitioner requirements for being granted L blanket approval are found in 8 C.F.R. 214.2(l)(4)(i). First, the petitioner must meet the basic requirements for being an L visa petitioner.  This means  l that all requirements  pertaining to the U.S.-based petitioner’s relationship with the foreign entity or entities employing the L visa petition beneficiary as well as the requirement that the petitioner be “doing business” in the United States apply equally to applications for L blanket approval.  The L blanket regulations then add additional requirements for a petitioner seeking blanket approval.

The L blanket approval-specific requirements are:  The petitioner and each of its qualifying entities are engaged in commercial trade or services; the petitioner has had an office in the United States that has been doing business for at least one year; the petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and the petitioner (or other qualifying organization) has either obtained approval for at least ten L1A or L1B managers, executives, or specialized knowledge professionals over the previous twelve months, or the petitioner has U.S. subsidiaries or affiliates with combined annual sales of at least $25 million or  a combined U.S. work force of at least 1,000 employees.

The requirements for L blanket approval exclude “new office” L visa petitioners and non-profit petitioners.  Furthermore, approved L1B petitions for non-specialized knowledge professional intracompany transferees are not counted toward meeting the requirement for L blanket approval.  As we will see, the only type of L1B beneficiary who may be petitioned for under an L blanket petition is an L1B specialized knowledge professional.

Seeking L Blanket Approval and Adjudication Process

An application for L blanket approval is filed on the Form I-129, Petition for Nonimmigrant Worker.  The petitioner must establish that it meets the regulatory requirements for L blanket approval.  

If the L blanket petition is approved, the petitioner will have L blanket approval for an initial period of 3 years.  L blanket approval may be extended indefinitely provided that the petitioner continues to meet the applicable requirements.  An L blanket petition may be approved in part and denied in part where certain organizations under the petitioner’s umbrella are found to meet the requirements while others are not. 

If there is a change in the relationships of any of the qualifying organizations with L blanket approval, the petitioner must file an amended Form I-129 explaining the changes.

Transferring Employee from Abroad Under L Blanket Petition

In order to transfer an individual L1A or L1B employee under an L blanket petition, the petitioner must file the Form I-129S, Certification of Eligibility for Intracompany Transferee under a Blanket Petition.  The petition beneficiary must be provided by the petitioner with a Form I-797 reflecting the petitioner’s blanket approval.  The beneficiary may then apply for a visa through consular processing within six months of the date on the Form I-129S.  A Canadian beneficiary of a Form I-129S may apply for a visa with the U.S. Customs and Border Protection (CBP) at a qualifying port of entry in order to seek admission under the L blanket petition.

The consular office will only approve an L1A or L1B visa for a beneficiary under a blanket petition for “clearly approvable applications.”  The requirements for a beneficiary are the same as for a non-blanket L1A or L1B petition except for the limitation on the L1B category to specialized knowledge professionals only.  A petitioner may not seek to afford L1A or L1B status to a beneficiary through a non-blanket and blanket petition simultaneously.  However, a petitioner with blanket approval may opt to file a non-blanket petition on behalf of a beneficiary in lieu of seeking approval under the blanket petition.  A petitioner may file an individual L1 petition on behalf of a beneficiary who was denied a visa under the L blanket procedure.

Limitations on L Blanket Validity and Extensions of Stay

An individual may be approved for an L1 visa under an L blanket petition so long as the L blanket approval of the petitioner remains valid.  The beneficiary may be approved for an initial period of stay of three years even when the validity of the L blanket petition may expire before that date. However, if the validity of the L blanket approval is slated to expire while the employee is on L1 status in the United States, the petitioner will be required to either seek an extension of the validity of the L blanket petition or to file an individual petition to support the employee’s continued employment in the United States.

In order to seek an extension of stay for an employee under an L blanket petition, the petitioner must file a new Form I-129S on behalf of the employee.  This extension request may be filed concurrently with a request to extend the validity of the L blanket petition.  However, the applications will be considered separately.

Transferring Employees Under L Blanket Petition

An employee may be transferred from one of the petitioner’s organizations with L blanket approval to another with L blanket approval so long as the employee will be performing virtually the same job duties.  If the job duties will be different, the petitioner must complete a new Form I-129S on behalf of the beneficiary and submit it for approval with the United States Citizenship and Immigration Services (USCIS) director who approved the blanket petition.  The petitioner cannot transfer an L blanket employee to an entity that does not have L blanket approval under an L blanket petition.

Conclusion

Large petitioners that meet the L blanket requirements may benefit from seeking L blanket approval. L blanket approval makes it easier to transfer multiple L1A and L1B employees from abroad than filing individual petitions on behalf of each employee.  However, it is important to note that, while the L blanket petition makes it easier to seek approval for L1A and L1B intracompany transferees, it does not alter the beneficiary’s requirements for eligibility.  For this reason, petitioners may still be required to file individual petitions on behalf of beneficiaries who do not present clearly approvable cases or for L1B beneficiaries who fall outside of the scope of the L blanket procedure.

Petitioners should consult with an experienced immigration attorney for guidance in seeking L blanket approval and in handling individual cases that may present special concerns.

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 - "L Blanket Petitions", "L1A Visa Overview", "L1B Visa Overview"

Lawyer website: http://myattorneyusa.com

National Benefits Center Average Processing Times as of August 31, 2016

On October 18, 2016, the United States Citizenship and Immigration Services (USCIS) released its most recent processing times information for the National Benefits Center (NBC) [PDF version]. This processing time information reflects processing times as of August 31, 2016. The average processing times are designed to give persons who have filed benefit requests with the NBC an idea of when these requests may be fully adjudicated. The following are the processing times as of August 31, 2016:

• Form I-102, Application for Replacement/Initial Nonimmigrant Arrival/Departure Record (processing cases as of June 5, 2016)
• Form I-131, Application for Travel Document (3 months)
• Form I-539, Application to Extend/Change Nonimmigrant Status (2.5 months)
• Form I-600, Petition to Classify Orphan as an Immediate Relative (2.5 months)
• Form I-600A, Application for Advance Processing of Orphan Petition (2.5 months)
• Form I-601A, Application for Provisional Unlawful Presence Waiver (Processing cases as of February 27, 2016)
• Form I-765, Application for Employment Authorization (based on pending Form I-485 adjustment application [Form I-765 category (c)(9]) (3 months)
• Form I-765, Application for Employment Authorization (all others) (3 months)
• Form I-817, Application for Family Unity Benefits (6 months)
• Form I-824, Application for Action on an Approved Application of Petition (3 months)

The NBC advices that an applicant with a pending application for employment authorization (Form I-765) may submit an inquiry if his or her cases has been pending for at least 75 days. If a person files a Form I-765 based on a pending asylum application (Form I-765 category (c)(8)), the average processing timeframe only applies to an initial filing. If the person is filing for employment authorization under Form I-765 category (c)(33) along with a filed Form I-821D for benefits under DACA, the 90-day period for Form I-765 adjudication does not begin until the USCIS makes a decision on the deferred action request.

To learn more about issues related to some of these forms, please consult our collection of materials on this site:

• Retrieving a Form I-94 [see article]
• Travel Visas [see category]
• Change of Nonimmigrant Status [see article]
• International Adoption [see category]
• Provisional Unlawful Presence Waivers [see article]

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

Reinstatement of F1 Status

What is Reinstatement of F1 Status?

Individuals on F1 student status are required to follow all of the rules and regulations regarding F1 status in order to maintain such status.  If an F1 student commits a status violation, he or she will be considered out of status.  Normally, a person who is out of status and not otherwise authorized to be present in the United States would have to depart the United States and apply for admission from abroad.  However, in certain circumstances, an F1 student whose status lapses may be eligible for what is called “reinstatement of F1 status.”  If an individual has his or her F1 status reinstated, the individual may reclaim his or her F1 status without having to depart the United States.

Eligibility for Filing for Reinstatement of F1 Status

In order to be eligible for reinstatement, the individual must not have been out of status for more than five months prior to applying.  However, an individual may seek reinstatement outside of the five month window if he or she establishes that the failure to file a timely application for reinstatement was the result of exceptional circumstances, and that the individual filed for reinstatement as promptly as possible under the exceptional circumstances.

An individual seeking reinstatement must not have a record of repeated or willful violations of United States Citizenship and Immigration Services (USCIS) regulations.  The individual must be currently pursuing, or intending to pursue, a full course of study in the immediate future at the school that issued the student’s Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.  The individual must not have engaged in unauthorized employment, and the student must not be deportable on any ground other than section 237(a)(1)(B) or (C)(i) of the Immigration and Nationality Act (INA) (relating to those present in violation of the law and those who violated their nonimmigrant status).

If the individual meets the basic eligibility requirements for seeking reinstatement of F1 status, the individual will still be required to establish that he or she merits reinstatement.  In order to do so, the individual may establish eligibility through one of two means.

The first method requires that the individual establish that the status violation resulted from circumstances beyond his or her control.  The regulations offer examples such as serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the individual’s Designated School Official (DSO).  The student will not be entitled to reinstatement if there is a pattern of willful status violations or if willful failure on the part of the student resulted in the status violation.

The second method through which an individual may endeavor to establish eligibility is by establishing that his or her status violation relates to a reduction in course load that would have been within the DSO’s power to authorize.  Furthermore, the individual must establish that the denial of reinstatement would result in extreme hardship.

As we will discuss in the next section, the student seeking reinstatement of F1 status must have the approval of his or her DSO.

Filing Process, Pending Applications, and Denial of Reinstatement

The application for reinstatement of F1 status is filed on the Form I-539, Application to Extend/Change Nonimmigrant Status.  The Form I-539 must be accompanied by the requisite filing fee and by a completed Form I-20.  The Form I-20 must include a recommendation by the individual’s DSO for reinstatement of F1 status.  The application must establish that the student is eligible for reinstatement and explain the causes of  the status violation necessitating reinstatement.  Derivative F2 dependents may be included in the reinstatement application.

While an application for reinstatement of F1 status is pending, the student may continue to study. However, the F1 student will be ineligible to engage in on-campus employment or to otherwise avail him or herself to benefits of F1 status until reinstatement is granted.  Regulations also prevent F1 students with pending reinstatement applications from transferring schools.  The time accrued from the date of the application for reinstatement to the date that reinstatement is granted will not count toward eligibility for either curricular practical training (CPT) or optional practical training (OPT).  If reinstatement is granted, the time that the F1 student spent in F1 status prior to the status violation will count toward eligibility for CPT and OPT.

If an application for reinstatement of F1 status is denied, the individual will be considered to have lost F1 status.  Accordingly, the student’s nonimmigrant visa would be invalidated under section 222(g) of the INA.  The student would be required to depart the United States immediately. However, there is no admissibility bar for an individual who was denied reinstatement of F1 status.  This means the individual would be eligible to apply for F1 status from abroad.  It is important to note, however, that the Department of State (DOS) would likely look closely at the circumstances of the individual’s previous loss of F1 status in determining whether he or she should be granted a new F1 visa.

When is Applying for Reinstatement of F1 Status the Best Option?

Applying for reinstatement of F1 status is not the best option in every case where a violation of F1 student status occurs.  The first reason for this is that reinstatement of F1 status is only available for certain status violations.  If the status violation did not occur for a reason that we discussed in point two of this article, or if the individual is ineligible for reinstatement for a different reason, the individual’s only recourse would be to depart the United States and reapply for F1 status from abroad.  Furthermore, students with pending applications for reinstatement of F1 status may not commence a new course of study.  This means that once the individual’s course of study expires, he or she will have to depart within the 60-day grace period even if there is a pending application for reinstatement of F1 status.  Because an application for reinstatement of F1 status may take several months to process, it is important to consider how much time the student has left on his or her current F1 status when considering this course of action.

Because the individual’s DSO must be willing to endorse an application for reinstatement of F1 status, the student should first discuss the situation with his or her DSO.  Additionally, the student is well-advised to consult with an experienced immigration attorney both for determining whether he or she should pursue reinstatement of F1 status and for assistance in applying for reinstatement of it is determined that applying for reinstatement of F1 status is in the individual’s best interest.

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 - "Reinstatement of F1 Status"

Lawyer website: http://myattorneyusa.com