O-1s for Highly Qualified Fashion Designers, Performance Artists and Others in the Arts

The O-1 may be an option for those who did not get an H-1B visa number. Unlike H-1Bs, which have a shortage of visa numbers, there is no limit to the visa numbers for the O-1 category. Because it is for those with “extraordinary ability”, it generally is not suitable for those who have just graduated from university, or young people just starting out in their career. The O-1 allows those who have shown extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture and TV industries to come to the U.S. temporarily for up to three years initially, and then may be extended.

Thus, suppose you are a fashion designer with national or international renown who did not get an H-1B visa number in the visa lottery this year, you may still apply for an O-1. Additionally, there is no requirement for the O-1 to prove that the beneficiary is a “professional”, thus there is no requirement that the O-1 applicant have a four-year bachelor’s degree that is closely related to his or her field.

For example, musicians who lack a bachelor of music or others who cannot show both that the position is a professional position and that they have the requisite degree and so are not eligible for an H-1B, may be eligible for an O-1 because as long as you can show the requisite degree of success in your field, you may obtain an O-1 even if you have no formal degree, or the job itself is not professional.

This article will focus on O-1s in the arts, which have an easier legal standard to satisfy than O-1s in the sciences, business and education. Federal regulations define “arts” very broadly to include the following:

1)  fine arts, i.e., painting, drawing, etc;

2)  visual arts, i.e., industrial design, graphic design, fashion design, fashion modeling, interior design, photography, are just some examples;

3)  culinary arts, i.e., top French chefs; top pastry chefs, etc., and

4)  performing arts, i.e., singers, composers, musicians, actors, dancers, directors, choreographers, etc.

You may be eligible for an O-1 even if you are not the principal creator and performer, but essential to the production, including directors, set designers, lighting designers, sound designers, choreographers, conductors, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, and animal trainers.

The legal standard for an O-1 in the arts is somewhat lower than the exceptionally high standard in the fields of business, sciences and education. While in the areas of business and science, you have to prove that you are one of the few at the very top of your field, in the area of arts, you instead must prove “distinction”, meaning “renowned, leading, or well-known in the field of arts”.

One advantage of the O-1 over the H-1B, is that you do not need a single employer to be the petitioner. The O-1 allows you to use a US agent as the petitioner. The U.S. agent may be: the actual employer of the beneficiary; the representative of both the beneficiary and the employer; or a person or entity authorized by the employer to act in its place. The agent and beneficiary must have a written contract, and if there are a series of events or performances in various locations or with various employers, a detailed itinerary with dates, locations, etc.

O-1s also generally require a written advisory opinion from a peer group, union, labor and or management organization. To give you an idea of the various organizations suitable for an O-1B advisory opinion, USCIS has a non-exhaustive list, at https://www.uscis.gov/working-united-states/address-index-i-129-o-and-p-consultation-letters.

If one has not been nominated for, or received, significant national or international prizes, such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, the beneficiary must show at least three of the following:

1)  they have performed a lead or starring role in productions with a distinguished reputation;

2) leading or critical role for organizations or establishments with a distinguished reputation;

3) they have national or international acclaim as shown by critical reviews or articles in major newspapers, trade journals, etc;

4)  major commercial or critically acclaimed success;

5)  significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field;

6)  high salary or substantial remuneration.

7)  A catch-all category, so the beneficiary can submit “comparable evidence” if the list above is not directly applicable to their field.

Copyright 2019 © Heidi J Meyers, all rights reserved.

Filing for Asylum When You Have Missed the One-year Deadline

According to federal regulations, a foreign national who fears persecution in his or her home country, must apply for asylum within one year of their entry date in order to be eligible.

First, we will review the requirements for meeting the one-year deadline for asylum. Suppose you entered the U.S. on January 25, 2019, you would have until January 26, 2020 to file your asylum application. If the last day falls on a Saturday, Sunday, or federal holiday, then the applicant has until the following business day to meet the one-year deadline. The USCIS (US Citizenship and Immigration Service) or the Immigration Court would have to receive the I-589 asylum application by the deadline.

If USCIS receives the I-589 application, but it is not complete, meaning every single box is filled in or checked, USCIS will return the application to the applicant within 30 days. If USCIS rejects the application, it is not considered to have been received. However, if you complete all the corrections and return it promptly, it may be considered to meet one of the exceptions and considered filed timely.

The best practice is to file the asylum application well before the one-year deadline. It does not make sense to get into a contentious dispute with DHS if the application was received exactly at the one-year mark. The Immigration Judges, BIA and USCIS generally apply a high bar to showing exceptions to the one-year rule, so it is best to just comply and meet the deadline rather than arguing over an exception later on.

What happens if you miss this deadline and you fear returning to your home country? Let us take an example. A young man from India comes to the U.S. as an F-1 student to study computer engineering as an undergraduate. After four years, he graduates with his bachelor’s, works for a year with OPT and then returns to school to study for his masters. By now, almost six years have passed since he first came to the U.S. It just so happens that this young man happens to be Christian, from one of the scheduled castes. Since the election of Narendra Modi in 2014, there has been an exponential increase in violence against Christians in India. Recently, in a phone call, his parents told him that their family church which he attended since birth has been burned down by Hindu extremists, and that there are RSS vigilantes in their area practicing paramilitary exercises regularly. His family is terrified. The BJP government is not doing anything to protect Christians, and in fact is encouraging Hindu extremism. Local politicians are demanding that Christians and Muslims either convert to Hinduism or leave India. The young man has missed the one-year deadline to apply for asylum. Is there some exception whereby he would still be eligible?

Many people miss the one-year deadline for various reasons. What are the exceptions to the one-year rule? What if you have been living in the US for a number of years, is it possible you are still eligible for asylum?

According to 8 CFR 208.4(a)(4), an applicant may still be eligible for asylum if he or she proves “changed circumstances”, which include:

(A) Changes in country conditions;

(B) Changes in the applicant’s own circumstances, such as changes in US law, or activities he or she becomes involved with in the US ; or

(C) Minors who were included on their parents’ I-589, and who reach the age of 21, have a reasonable period of time after their birthday to file their own asylum application. Additionally spouses of asylum applicants who are divorced or widowed, the divorce or death of the spouse is considered a changed circumstance.

Applicants with changed circumstances must file their I-589 asylum application within a reasonable period of time after the change. If the applicant can show they did not know about the change in circumstances for a certain period of time, “such delayed awareness shall be taken into account in determining what constitutes a ‘reasonable period’ “.

The second category of exceptions from the one-year deadline is extraordinary circumstances. Extraordinary circumstances include the following:

(i)           Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival;

(ii)         Legal disability (for example, the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival;

(iii)        Ineffective assistance of counsel – your attorney did not do their job causing you to miss the deadline (Lozada complaints are a whole other discussion, I will not go into the details of them here);

(iv)        The applicant maintained TPS (Temporary Protected Status), lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v)         The applicant filed an asylum application prior to the expiration of the one-year deadline, but that application was rejected by USCIS as not properly filed, was returned to the applicant for corrections, and was refilled within a reasonable period thereafter; and

(vi)        The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family. 8 CFR 208.4(a)(5).

Returning to our example above, the young man meets a combination of extraordinary circumstances and changed conditions. Initially, during his first year in the U.S. and continuing up to the present, he has maintained legal immigration status, thus, he can show he meets one of the extraordinary circumstances exceptions, as he has maintained legal status up to a reasonable period before filing for asylum. Second, he also meets the changed country conditions exception, as conditions in India for Christians have dramatically worsened with the rise of Hindu fundamentalism, and there has been a dramatic increase in violence against Christians, as well as the burning down and vandalism of churches, since when he initially came to the U.S. Thus, our young man would have a good argument that he is eligible for an exception to the one year rule, and should be eligible to apply for asylum.

Copyright 2019 © Heidi J. Meyers all rights reserved

Temporary General License for Companies Already Doing Business with Huawei Up to August 19, 2019

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

What to Do if You are a Conditional Resident Based on Marriage and Your Marriage Falls Apart

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.

Visa Bulletin July 2019 Current for Spouses & Minor Unmarried Children of Permanent Residents. Get Ready to File during July!!

The July 2019 State Department Visa Bulletin is showing the F2A category, spouses and minor unmarried children of permanent residents, as current for all countries including China, India, Mexico and the Philippines. Thus, spouses and minor children of permanent residents with an approved I-130 are able to file for their immigrant visas or adjustment of status to permanent residency during the month of July 2019. Where the beneficiary is already in the U.S., they may be able to file the marriage petition and adjustment to permanent residency concurrently, along with the work authorization application.

The family preference of spouses and minor children of permanent residents has become current for the month of July because the US State Department has received less demand for immigrant visas than it had expected during the first half of the fiscal year (the US government fiscal year runs from October 1st to September 20th, so for July 2019 we have already completed nine months of the fiscal year).

However, should there be a stampede of immigrant visa and adjustment applications in the F2A category during July, it could again become backlogged in August or a little later. This may indeed happen, as nationals of countries such as India, China, Mexico and the Philippines which are used to experiencing longer-than normal backlogs, may suddenly file huge numbers of applications.

If you do have an approved F2A I-130 marriage or child petition, you need to get your immigrant visa or adjustment application ready now, so that you are prepared to file during July 2019.

However, the F2B category for adult unmarried children of permanent residents remains backlogged to September 1, 2013 worldwide as well as for China and India. F2B is even further backlogged for Mexico at July 1, 1995 and the Philippines at August 1, 1997.

#VisaBulletin #spousespermanentresidents #prioritydates #StateDeptVisaBulletin

Copyright 2019 © Heidi J Meyers, all rights reserved.

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