The Commerce Dept’s BIS (Bureau of Industry and Security) has issued a final rule providing a temporary general license for companies already doing business with Huawei or one of its related companies as of May 16, 2019. For the complete final rule, see, https://www.bis.doc.gov/index.php/documents/regulations-docs/2396-temporary-general-license-rule/file With the exception of the transactions allowed by the temporary license, exports, re-exports and in-country transfers continue to require a license for Huawei and its companies.
Up until August 19, 2019, as long as written contracts were already signed and effective, the US government will still allow
1) continued operation of existing networks and equipment, including software updates and patches;
2) Service and support to existing Huawei handsets;
3) Cybersecurity research and vulnerability disclosure, including the disclosure to Huawei companies of security vulnerabilities in its items;
4) Engagement as necessary for the development of 5G standards by a duly recognized standards body, such as the IEEE – Institute of Electrical and Electronics Engineers, among others.
The licensing and other polices of the EAR regarding exports, re-exports and transfers (in-country) to Huawei companies that were in effect prior to May 16, 2019 are in effect for transactions eligible for this temporary general license, which expires on August 19, 2019.
Copyright 2019 © Heidi J Meyers all rights reserved
Foreign nationals who obtain their green card through marriage to a US citizen or permanent resident, but who have been married for less than two years at the time of approval of their adjustment of status, get only a two-year conditional residency, with an expiration date. During the 90-day period prior to expiration of the conditional green card, both husband and wife have to file a joint petition to remove the conditions on residency, the Form I-751. The husband and wife, even though they file jointly, must still prove that the marriage is genuine and that they are continuing to share their lives together. The foreign national can then get his or her permanent residency, and is also eligible to file for naturalization within 90 days of the third-year anniversary of their green card.
What if the marriage does not work out? Perhaps it was an arranged marriage where the families had a very formal relationship prior to the wedding, and everyone was on their best behavior, with an expensive, grand three-day wedding that was absolutely beautiful. But then afterwards, no one is on their best behavior anymore. The new husband and wife discover that they do not share the same values or outlook and are totally incompatible. Or the wife discovers she has an unbearable mother-in-law. Or the husband turns out to be abusive (of course, there are abusive wives too!!), or has had a girlfriend on the side the whole time whom he has continued seeing. And, well, all hell breaks loose…
Of course, there are many reasons marriages can break down. If you are a conditional resident with your expiration date coming up and have separated from your spouse, he or she is not willing to cooperate in filing the I-751, what are you to do?
You still need to try to file the Form I-751 prior to the expiration date of your conditional residency. Only now you will no longer be filing jointly with your spouse, but instead must qualify for an exception.
One exception is where you entered the marriage in good faith (meaning you married to spend your lives together, not for immigration purposes), but that the marriage has ended in divorce or annulment. To qualify on this basis, the conditional resident must already have in hand a final divorce judgment or annulment. Many mistakenly believe that as long as they file for divorce, this is enough. It is not. The judge must have issued a final order in your divorce case. You must also prove that the marriage was genuine, not for immigration purposes.
A second exception is where you were battered or suffered extreme cruelty by your U.S. citizen or permanent resident spouse. Documentation is very important, you will need to submit any police reports, medical reports of injuries, photos of injuries, orders of protection, proof of counseling for any emotional or psychological harm (or evaluation by a forensic psychologist), and affidavits from witnesses.
A third exception is where removal from the U.S. would cause you extreme hardship. Here, you may document conditions in your country of origin, such as sectarian violence, discrimination against minority religions or ethnic groups, war, conditions for women, access to health care and opportunities, etc. Also, if you have US citizen children or other close family members in the U.S., have lived here for many years, would have to sacrifice your career, and other factors are also important.
Another exception is where the U.S. citizen or permanent resident spouse dies. Again, it is always important to prove that the marriage was genuine. Perhaps you are the beneficiary of life insurance.
The conditional resident has the option of filing more than one I-751 waiver, each based on a different exception. So, for example, you could file one I-751 waiver based on the fact that your spouse abused you, and a separate I-751 based on extreme hardship if you had to return to your home country.
Hopefully, you will have an interview, and if your case is well-documented and you can articulate the history of your marriage and how you qualify for an exception, the USCIS will approve your I-751. But let us imagine the worst-case scenario, if USCIS denies your I-751 and terminates your conditional residency.
USCIS will refer you into removal proceedings in immigration court, but issuing an NTA (a Notice to Appear). The great part is that you have a second chance to prove your case in front of the immigration judge. Not only can you renew your I-751 exceptions before the Immigration Judge, but you can also apply for whatever relief from removal for which you may be eligible, such as asylum or cancellation of removal for battered spouses.
Envisioning all the possible scenarios becomes very complex, but as you see, there is no reason to be devastated about your chances of becoming a lawful permanent resident even if your marriage falls apart. You still have options.
Copyright 2019 © Heidi J Meyers, all rights reserved.
For employers and employees who have started preparing their H-1B petitions for filing on April 1st, it is not too early to start thinking of alternatives in case your petition is not selected in the H-1B lottery. This article is just a short overviews of possible options, and does not provide all the details of the requirements for each visa option.
Employers may file an H-1B petition on behalf of an employee, and at the same time may pursue filing petitions for other nonimmigrant visa categories, for example, an L-1A, L-1B or O-1A on behalf of that same employee. Or, go for the gusto and file straight for the geen card. The alternatives available depend upon many factors.
One of the complaints of commenters to the new H-1B rule, was that the new lottery system favors presumably young and inexperienced students over much more experienced foreign workers. If a company wants to sponsor a very high-level foreign worker, the O-1A or O-1B may be an option. The O-1 is for foreign workers who have extraordinary ability in their field, be it science, education, business, athletics, art or the motion picture and television industries or even “any field of endeavor”.
Just how “extraordinary” does the foreign worker have to be to meet the standard for the O-1? This depends upon the field. For the O-1A classification, if the foreign worker is to be employed in the fields of science, education, business, or athletics, the standard is extremely high, and it would have to proven that the individual is at the top of his or her field. The proof must include either receipt of a major international award, such as a Nobel prize, or by submitting at least three of six types of evidence, such as the following: nationally or internationally recognized prizes or awards; membership in an exclusive professional association that requires outstanding achievements to be a member; articles about the beneficiary in professional or major trade publications or media; the beneficiary has judged the work of others in the field; the beneficiary’s important original scientific, scholarly or business contributions; the beneficiary has written important scholarly articles; employment in a critical role for a distinguished organization; or a high salary.
However, for those who will be employed in the arts, the O-1B classification requires only that the artist be “prominent” in the field, and is a lower standard. The arts is defined very broadly, including but not limited to the following: fine arts; visual arts; culinary arts; performing arts; and architecture. The proof must include at least three of a list of six types of evidence, such as performed in a lead or starring role for distinguished productions, or distinguished organizations, critical reviews and articles in the media, a record of major commercial or critically claimed successes, recognition of achievements from experts in the field or a high salary.
Second, if the company in the US has a subsidiary, or offices abroad which already employ the foreign worker, the employer may be able to file an L-1B (specialized knowledge worker) or an L-1A (manager or executive) petition. Whether this is an option depends upon the relationship between the overseas company and the US company sponsor. The US company and the overseas company must be a parent/subsidiary, branch office of the same company or a joint venture. This is just a general description, the specific requirements are more detailed, and should the ownership or control of either company change, then the foreign worker may no longer be eligible for an L visa. According to the statute as written, the employee must have worked for the overseas company for at least one year out of the last three years, but in practice USCIS is extremely exacting and many more years of experience may be necessary in order to convince USCIS that the foreign worker really qualifies for an L visa. For a specialized knowledge worker petition, the employer must show that the employee has “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” In order to qualify for L-1A status, the employer must show that the employee will be primarily performing managerial or executive duties, and not engaged in day-to-day operations that can be handled by less senior staff. This standard is especially difficult for a small company with few employees to meet.
Another option may be the E-1 treaty trader or the E-2 treaty investor. There must be a treaty providing for E visas between the U.S. and the foreign country of which the employer and employee are citizens. If the foreign country does not have any treaty with the U.S., it is not possible to file for an E-1 treaty trader or E-2 treaty investor. For example, India does not have such a treaty with the U.S. so its citizens cannot apply for either E-2 or E-1 status, while Pakistan does have a treaty, so Pakistanis may apply for either E-1 treaty trader or E-2 treaty investor. There is a long list of countries with which the US has bilateral investment treaties, for example, Argentina’s, Colombia’s and Italy’s provide for both E-1 and E-2 visas. Some countries have treaties which provide for only one or the other, for example, Albania’s and Egypt’s provide for only E-2 treaty investor. Here is the list of countries with which the US has treaties for E visas: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
The sponsoring company must have the nationality of the treaty country. In a small company, for example, the nationality would be determined by the individual owners of the company. For a publicly-traded company, if the company shares are listed exclusively on a particular stock exchange, that is a factor in determining the citizenship of the company, but the company would still have to provide additional evidence.
For E-1 treaty traders, the company must prove that the beneficiary is being admitted “solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national” INA 101(a)(15)(E)(i). The beneficiary must be coming to the U.S. for an executive or supervisory position, or possess skills essential to the firm’s operations in the U.S.
For E-2 treaty investors, the company must prove that the E-2 investor is coming to the U.S. “solely to develop and direct the operations of an enterprise in which he ahs invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital” INA 101(a)(15)(E)(ii). In addition to the investor who provides the capital for and runs the business, an E-2 company may sponsor other E-2 employees for executive or supervisory positions, or where the employee has specialized skills essential to the business, if US workers are not available to do the job.
The above options are all good ones, as the sponsoring employer may continue to employ the foreign worker for long periods of time, and there are no limits on visa numbers. For the O-1A, O-1B, E-1 and E-2 visas, there is no limit on extensions. For L-1A there is a limit of seven years, while for L-1B there is a limit of five years.
As mentioned above, this is only a short overview. Should you need detailed advice, you will need to retain a competent immigration attorney.
In Part II, we will discuss possible options for temporary visas which provide only for short periods of employment, or for a status that does not allow employment, but allows for training or certain types of business activities.
Copyright 2019 © Heidi J. Meyers all rights reserved.
In 2019, DHS is still accepting applications for waivers of old removal, deportation and exclusion orders for people who never departed the U.S., are still here and are eligible for their green card but for their old deportation order. Applicants must show all the positive factors in their favor, such as U.S. or permanent resident spouse, parents or children, work history, medical issues of any family members, the applicant’s important role in taking care of the family, military service of any family members, bad conditions in the native country, etc. The positive factors must outweigh the negative factors including having an outstanding deportation order and never having left the U.S.
So, for example, if an applicant has an immediate family member who is a U.S. citizen, and obtains an approved relative petition, the applicant may then apply to waive the old deportation order. Once he or she receives an approval of the I-212 waiver, the applicant is then eligible to file an I-601A provisional unlawful presence waiver based on a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.
With both the approved I-212 waiver and the approved I-601A waiver in hand, the individual is then ready to go ahead with immigrant visa processing, get an interview date at the US Consulate in his or her home country, and proceed abroad for the interview for an immigrant visa, and then return to the U.S. as a lawful permanent resident.
Copyright 2019 © Heidi J. Meyers all rights reserved