ICE has begun workplace inspections of employers who have F-1 OPT STEM workers. Thus, if a company has an employee with the two-year extension of OPT work authorization limited to those F-1 students with STEM (Science Technology Engineering and Math) degrees, the employer should be ready for a site inspection by ICE SEVP officers.
If an employer receives an email from ICE regarding a site inspection, the company should have its I-983 training plans organized, as well as supporting documentation, and be ready to show that the employer is complying with the training plan as well as with other OPT requirements.
During the visit, ICE officers may ask to speak directly with the company’s immigration manager, F-1 employee’s supervisor, as well as with the F-1 employee himself or herself.
The scope of the visit should be limited to the purpose of inspecting compliance with the training plan and F-1 OPT. ICE officers should not be allowed to wander around or investigate any other aspects of the company’s business, employees or employment practices. Receptionists should be advised to immediately contact the responsible manager when they arrive. The company representative who deals with ICE needs to keep a detailed record of the name, office location and phone numbers of the ICE agents, the questions asked and responses and documents provided by the company to ICE.
The company manager should be ready to explain the F-1 employee’s job duties, how the position relates to the F-1 employee’s degree and studies, how the F-1 employee is qualified for the position, the qualifications for similar positions, how the manager supervises the F-1 employee and how the training is carried out. If the employee is actually working at a third-party client site, the manager needs to explain how the employee is supervised and trained, even while at a third-party site.
Copyright 2019 © Heidi J Meyers all rights reserved.
Department of Homeland Security (DHS) has issued a proposed rule requiring collection of all social media sites used for the past five years, including user names, not only to enter the U.S., but also on numerous immigration applications, including those for permanent residency and naturalization.
This is a proposed rule, and DHS is accepting comments up to November 4, 2019. Thus, it is not yet in effect. The rule proposes gathering information on all social media use for the past five years of all applicants for entry into the US, as well as immigrants filing for other immigration benefits.
DHS will use the following list, a drop-down menu, for all ESTA and EVUS applications, requiring the applicant to reveal any use of the following social media sites: Ask FM; Douban; Facebook; Flickr; Instagram; LinkedIn; MySpace; Pinterest; QZone (QQ); Reddit; Sina Weibo; Tencent Weibo; Tumbler; Twitter; Twoo; Vine and Vkontakte (VK).
However, this list is subject to change, and DHS will change it as needed to keep up with new social media and people’s preferences. Applicants for adjustment and other immigration benefits are expected to reveal all social media use in the past five years, not limited to those particular web sites.
DHS’s definition of social media is very expansive and vague, and is not limited to those mentioned on the list: “Social media takes many different forms, including but not limited to web-based communities and hosted services, social networking sites, video and photo sharing sites, blogs, virtual worlds, social bookmarking and other emerging technologies.”
Not only will social media information be required for applications to enter the US on the visa waiver program, using ESTA, EVUS, and visa applications from abroad, but it will also be required for foreign nationals and permanent residents already physically present in the US., applying for permanent residence, naturalization, asylum, advance parole, petitions for family members of asylees, removal of conditions on residency (for those who obtained the green card based on marriage to a US citizen) and petitions by entrepreneurs to remove the conditions on permanent residence (EB-5).
For applicants for adjustment to permanent residency, this new rule coincides with the new public charge rule. As a result, foreign nationals applying for the green card now face a much more arduous and lengthy process, as not only will they be required to provide their credit score, credit report, the amounts of any school loans, credit card debt and any and every other liability, as well as financial information on all the members of their household, but they will also be required to provide information on all social media use and user names for the past five years. This clearly is a strategy on the part of the Trump Administration of ‘looking for bad’, basically making an exhaustive search to try to find some reason to deny applications, and at the same time gather impressive amounts of data on the U.S. citizens connected to each foreign national. Our tax-payer money will be used up searching each and every foreign national’s social media, credit report and voluminous amounts of irrelevant data, to try to bar ordinary law-abiding people from the U.S. rather than focusing resources on actual threats to our national security.
While the proposed rule claims that DHS and its agencies, including CBP, ICE, and USCIS, will respect the First Amendment rights to free speech and association for residents and US citizens who also appear on the immigrant applicants’ social media, in practice this is nothing but lip-service. It is obvious that individual CBP agents, consular officers, and other government examiners have broad discretion and already violate our rights to privacy and free speech and association.
Prior to this rule, CBP (Customs and Border Protection) agents have already been checking the social media of people seeking to enter the US, as has the US State Department when people apply for visas. The other agencies of DHS, including ICE and USCIS, also research immigrants’ social media use, although up to now that information has not been requested on immigration applications
For example, the recent incident this September 2019, in which an F-1 student was initially denied entry into the US not even on the basis of what he himself posted or said on social media, but rather because of what other individuals posted. This Harvard student, who happens to be Palestinian, was interrogated for hours by CBP and was denied entry because of posts by ‘friends’ on social media, deemed to have political opinions contrary to the US by CBP officers. While this decision was reversed because of the intervention of Harvard University, most foreign nationals do not have Harvard or another powerful institution to go to bat for them, and will merely be turned away with no recourse. See, https://www.theverge.com/2019/8/31/20837448/social-media-dhs-cbp-surveillance-us-border-ismail-ajjawi-harvard
CBP’s current practice also affects US citizens, not just foreign nationals, as CBP has been demanding social media information and performing searches of cell phones and other electronic devices of US citizens returning to the U.S. See, https://reclaimthenet.org/us-citizens-gbp-social-media/
Individuals and organizations have the opportunity to submit comments on this new proposed rule, up to November 4, 2019, and make their voices heard to protect our beloved US Constitution. You may send your comments, which must include Docket # DHS-2019-0044 at http://www.regulations.gov, by following the instructions for submitting comments. See 84 Fed. Reg. 171 at p 46557 (Sept 4, 2019), at https://www.govinfo.gov/content/pkg/FR-2019-09-04/pdf/2019-19021.pdf
As George Orwell described in the classic book 1984, “Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed—no escape. Nothing was your own except the few cubic centimeters in your skull.” Our founders believed in limited government, as all-powerful governments turn oppressive.
Copyright 2019 © Heidi J. Meyers, all rights reserved.
The new Public Charge rule will harm many middle and working class immigrants who have never taken public assistance. The Trump administration’s new rule appears aimed to target all the middle and working class families and young people who believe in the American dream, and who decide to study hard, go to college, work hard, start businesses and advance themselves.
Up until this new rule, USCIS used an objective formula to determine public charge, which required a household income of 125% of the poverty level taking into account the number of individuals living in the household and total household income. Additionally, if the applicant was on some form of cash public assistance, he or she would have to go off that public assistance in order to get the green card. Because it relied on an objective, mathematical formula, the previous procedure to determine public charge was applied generally in a fair and uniform way.
The new public charge rule, more than 200 pages in the federal register, each page having three single-spaced columns, asks the USCIS officers to analyze multiple factors, and make a decision based on the “totality of the circumstances” whether to exclude an applicant based on public charge. The new system is subjective, and leaves a lot of discretion to individual officers, meaning that an officer can decide to deny someone a green card or change of nonimmigrant status, even though the applicant has never received public assistance.
Among the various factors, being younger than 18 or older than 61 is considered a negative factor. Since when have children been considered a “negative factor”? Children are an investment, they are our future. Also, many immigrants rely on their retired parents for childcare and running the household, freeing them up to work many hours. On the other hand, many people older than 61 continue to work. Lacking an employment history is a negative factor, which discriminates against housewives. Thus, the rule discriminates against women, children and the elderly, even if they have never taken public assistance.
Another negative factor is if the applicant does not speak English. Chris Cuomo, broadcast journalist on CNN (and son of former NY Governor Mario Cuomo) and Ana Navarro, Republican strategist and political commentator, have both pointed out that if English ability was the criteria, their parents and grandparents would never have been able to immigrate to the US and they would not be here today.
The adjudicator must also consider the applicant’s health, family status, assets, resources and financial status, education and skills. Even if you have never received public benefits, if you have applied for a public benefit and been denied, this must be revealed and is a negative factor. This brings up another point, which is that most permanent residents (with a few exceptions) are simply not eligible for any federal public assistance programs for the first five years of their permanent residency.
In particular, the new public charge rule seems aimed to target and deny immigration benefits to the Dreamers and other immigrants with the audacity to believe in the American Dream. The new Form I-944, Declaration of Self-Sufficiency requires information about any college loans an applicant has, as well as any credit card debt, mortgage or other liability. What young person who is not wealthy can get through college now without college loans? Many working class and middle class immigrants start their own businesses, and may have to borrow money. How can any middle class family purchase a house without a mortgage? Not only that, the I-944 requires applicants to provide their credit scores. Since when do you need good credit to get a green card or to change your immigration status?
With a bewildering number of details and considerations, whether or not a person is determined to be a public charge and barred from the US or getting a greencard, may come down to a particular officer’s prejudices and outlook.
The broad effect will be that many immigrants who have never taken public assistance and who most likely would not take public assistance in the future, who are middle class or working class aspiring to the middle class, students, women, children and the elderly will be denied their green cards as a “public charge”.
Copyright 2019 © Heidi J Meyers all rights reserved.
The Immigration Judge must use the categorical approach when analyzing whether a conviction for a crime constitutes a ground of removability under the INA (Immigration and Nationality Act). The facts are irrelevant, only the minimum conduct required to meet each of the elements of the statute is important.
There is a difference between the means used to commit a crime, and the statutory elements required for a conviction. For example, in a drug offense, if the statute refers to “a controlled substance” as an element, it does not matter which drug the defendant possessed or sold, as long as the particular drug is listed as a controlled substance, so the particular drug is a means and not an element. However, this depends upon the particular state statute involved, as different states may view means and elements differently.
If the lists of drugs on the state controlled substances statute and the federal controlled substances statute at the time of the crime are not the same, there is no categorical match, and most likely the respondent cannot be found removable for a controlled substances conviction, depending upon whether the state statute is considered “divisible” or not.
In removal proceedings based on criminal convictions, the U.S. Supreme Court in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013) held that the facts of what the respondent actually did that resulted in the criminal conviction are irrelevant. The Immigration Judge is not allowed to look at the underlying facts at all. Moncrieffe clarified that the immigration consequences of a prior conviction turn on a legal issue, which elements the conviction necessarily involved, with any ambiguity “construed in the noncitizen’s favor.” 133 S.Ct. at 1693. “The reason is that the[Immigration and Nationality Act] asks what offense the noncitizen was ‘convicted’ of,…not what acts he committed.” Id. At 1685.
In Mellouli v. Lynch, 135 S.Ct. 1980, 575 U.S. ___(2015), although the defendant had admitted to police that he had in his possession Adderall, a federally-controlled substance, because the conviction itself did not specify what substance he possessed and because the state controlled substances law was not an exact match with the federal controlled substances schedules, he was not convicted of a removable offense under the INA.
While Mellouli was convicted under state law prohibiting possession of drug paraphernalia, it did not matter that he actually possessed a federally-controlled substance, because the state law was not a categorical match with the federal controlled substances schedule at the time of his conviction. Thus, the categorical approach applies to drug convictions.
In Mellouli, the U.S. Supreme Court rejected the Government’s argument that all that is required is a “substantial overlap” between the federal schedules in 21 USC 802 and the state’s controlled substances schedule. Id at 12–14. The Supreme Court found that it was the state schedule at the time of conviction that was significant, not at the time of removal proceedings or any point later in the future. Id. at 3.
In Mellouli, the respondent admitted that the drug he had was Adderall. Adderall is a controlled substance under both federal and Kansas state law. Id. at 3-4. However, even though Mellouli admitted he had a federally controlled substance in his possession, the U.S. Supreme Court held that he had not been convicted of a controlled substance violation under U.S. immigration law, because the Kansas state drug schedule and the federal schedules were not a perfect match at the time of conviction, and because the state’s amended complaint did not include as an element a substance controlled under the federal schedules.
According to the Second Circuit in Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017), the court held that the particular substance in question is not an element of the offense of NYPL 220.31 (Criminal Sale of a Controlled Substance Fifth Degree) under New York state law, and that each separate controlled substance is not a separate offense.
In Harbin, the Second Circuit asked whether the offense was divisible or indivisible, and set out a procedure to determine this question. First, the Second Circuit looked at the text of the statute. The Second Circuit found that “a controlled substance” was an element of the statute, but not the particular drug, according to the statute’s plain meaning.
Second, the Second Circuit in Harbin looked at the statute’s penalty provisions. Because the penalties were the same regardless of which particular controlled substance was involved, that was another indication that the statute was indivisible.
Third, the Harbin court found that New York State case law did not help the government’s position. The Second Circuit in Harbin pointed out that the prosecutor must name the particular drug involved, so that the defendant 1) is on notice of the charges; and 2) is not at risk of being retried for the same incident, i.e. no double jeopardy. Thus, although the prosecutor must prove the particular drug involved, this is so one can determine to which class or schedule it belongs, and not because each specific drug is a separate offense. Id. at 66. Additionally, the government may have to prove the particular substance involved to show the chain of custody, not because each drug is a separate element. Id. at 66-67.
The Second Circuit made an analogy to murder cases, in which the government has to prove that there was a particular victim, e.g., John Smith, even though the victim’s identity, John Smith, is not an element of the crime, making it a separate crime from the murder of anyone else. Similarly, in drug cases, the government may be required to prove which drug was involved, even though each drug is not a separate element.
The analysis of criminal statutes and their immigration consequences is extremely complex and time-consuming, and reasonable people can differ on their interpretation. The litigation of these removal cases may end up taking many years. Another factor is that if the respondent (the person in removal proceedings) has other immigration issues such as immigration fraud or an illegal entry, this may make their situation even more complex. Those with a long immigration history (which is often the case with foreign nationals who have criminal issues) have an even more complex immigration situation.
However, there is hope for people with immigration issues and criminal convictions, given the decision of the Second Circuit in Harbin as well as recent decisions of the US Supreme Court in criminal immigration cases.
Copyright 2019 © Heidi J Meyers all rights reserved.
In order to qualify to apply for EB-1 as an Outstanding Professor, first, your position must be as a professor in a tenured or tenure-track position. The title of the position does not necessarily indicate whether it is tenured or tenure track or just temporary. For example, at Cornell University, Assistant Professor positions are generally not tenure track and are considered temporary. At the University of Washington, Associate Professor positions are tenure-track, while some Assistant Professor positions are tenure-track and others are not. Each college and university has its own policies regarding job titles and requirements for tenure track and tenured positions, so you need to read the individual college’s policy in detail. Some temporary positions may convert to tenure-track in the future. You are not eligible to apply as an Outstanding Professor if your position will convert to tenure-track at some point in the future. At the time of filing the I-140, your position must already be tenure-track. For example, if at the time of filing an EB-1 I-140, Professor Thinksalot is not in a tenure-track position, even if later on, while the EB-1 is still pending, her position becomes tenure-track, her EB-1 will be denied.
It has become more difficult to qualify for a tenure-track or tenured position. See, for example, The Chronicle of Higher Education, “How to be Strategic on the Tenure Track”, https://www.chronicle.com/article/How-to-Be-Strategic-on-the/244863
Aside from whether or not you will qualify for EB-1, there are other immigration considerations in deciding whether to take a non-tenure track position with a nonprofit or public college or university. One extremely important consideration is that you will be eligible for a change of status to H-1B at any time of the year, without have to worry about not getting an H-1B visa number, as there are no restrictions on visa numbers for professional positions with a nonprofit or public university or college. If you were unable to get an H-1B visa number applying through a private firm, then this may be a great option to stay in the US and further your career. Thus, while the salary may be quite a bit lower in academia than working for a private company, the security of definitely receiving an H-1B visa number and being able to remain in the US legally may outweigh any loss in salary.
Additionally, while you will not qualify as an EB-1 Outstanding Professor if the position is not tenure track, you may still qualify for a green card through a PERM labor certification special handling application as a professor, if you do classroom teaching, or possibly for a national interest waiver.
Of course, there are more considerations than simply immigration is deciding whether to take a position as a non-tenure track professor. Here is a nice article on tenure versus temporary or contract positions in academia, overview of different employment policies colleges and universities may have, and your considerations (outside of immigration) in deciding whether to take a contract position initially.https://www.apa.org/careers/resources/academic/non-tenure
The other option, the EB-1 Outstanding Researcher, requires an offer of permanent employment, which may be tenured or tenure-track, but is not required to be, as long as it is permanent. However, USCIS has clarified that even though many researchers have employment contracts valid for only one year, because the position depends upon funding from grants received yearly, it still may be considered a permanent position for the purposes of an EB-1 Outstanding Researcher. The university or college would have to show it intends to continue to seek funding and that it is reasonable to expect funding to continue, in order to prove that the Researcher position is permanent.
Copyright 2019 © Heidi J. Meyers all rights reserved.
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.
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
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.
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.
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Copyright 2019 © Heidi J Meyers, all rights reserved.