Seguritan US Immigration Articles

Conviction For Elderly Abuse is Bar to Deportation Relief

For noncitizens residing here in the US, the commission of certain crimes has immigration consequences. It may render them inadmissible and/ or deportable. There are also certain crimes known as CIMT or crimes involving moral turpitude which may preclude eligibility for deportation relief including cancellation of removal. A CIMT has been defined by the Board of Immigration Appeals (BIA) as a crime that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.”

In one case, an alien entered the US without inspection and without any legal documents. He was later convicted of abuse of an elderly. When he tried to take advantage of the Temporary Protected Status (TPS), his request was denied because of his conviction. On the very same day, he was issued a Notice to Appear by the Department of Homeland Security (DHS), charging him with removability because he was an alien present in the United States without being admitted or paroled under the Immigration and Nationality Act (INA) and he was an alien convicted of a CIMT.

The immigration judge ordered him removed. He appealed to the BIA contending that he qualified for relief from removal. The BIA determined that he did not qualify for relief because of his conviction for CIMT. He filed a petition for review with the US Court of Appeals but his petition was dismissed.

It is worth noting that in Florida, a criminal conviction for abuse of an elderly person or disabled adult is considered a CIMT and will hold an alien ineligible for relief from removal proceedings based on this criminal conviction.

Under Florida laws, a person who knowingly or willingly abuse an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree. For the willful act to be considered an “abuse”, it has to be one of the following three alternative ways: (a) intentional infliction of physical or psychological injury upon an elderly person or disabled adult; (b) an intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or (3) active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

It is very important for foreign nationals to seek the help of accredited immigration lawyers because CIMTs can affect the immigration status or application for immigration relief. Even those who were initially admitted to the US and travelled to other countries may have difficulty reentering the US because of a CIMT. Those who want to adjust status or become lawful permanent residents may likewise find it challenging if they have a CIMT especially if this happened within five years from admission. Same goes to those who want to apply as US citizens.

Different states have different penal laws as well. Thus, a CIMT in one state may not be a CIMT in another state.

Last year, we successfully represented a Filipino caregiver in her immigration case. She had been convicted of violating the California Penal Code Section 368 (c) for committing the crime of abuse of elder or dependent adult by caretaker. In that case, there was a finding that said caretaker “willfully caused and permitted his ward’s person and health to be injured and willfully caused and permitted the elder victim to be placed in a situation where his person and health have been endangered.”

 

Relief from Deportation

Although president-elect Donald Trump has softened his stance on deporting undocumented immigrants, many are still fearful of what his presidency could do especially to the young immigrants who came out of the shadows and offered their information in exchange for the protection promised by the Deferred Action on Childhood Arrivals (DACA).

Being placed under removal proceedings, otherwise known as deportation, is probably one of the hardest things any immigrant might have to experience. Thankfully, various deportation reliefs are available. Some reliefs will even offer a path to permanent residence which can ultimately lead to citizenship. Therefore, it is best to know what options are available before giving up hope.

Reliefs from deportation include asylum, cancellation of removal, adjustment of status, voluntary departure and deferred action.

Aliens who have a well-founded fear of persecution from their home country on account of their race, religion, nationality, membership in a political group or political opinion can seek asylum here in the US. They can bring their family members to the US, obtain employment authorization and may be eligible to apply for a green card one year after the grant of an asylum.

Cancellation of removal, just like an application for asylum, can also lead to a green card.

To be eligible for cancellation, the alien must prove continuous physical presence in the US of at least 10 years counted from the first physical entry into the country, legally or illegally, and ends upon the service of the notice to appear (NTA) at a removal proceedings. He must also prove his good moral character during the 10-year period and must establish that deportation would result in ‘exceptional and extremely unusual hardship” to a US citizen or a legal permanent resident spouse, parent or child.

For an alien who was admitted and inspected when he came to the US and he is the parent, spouse, widow or child of a US citizen, he may apply to adjust his status to permanent residence even before the immigration judge if removal proceedings have already begun.

Another type of relief that may be available is voluntary departure. This allows an alien who would otherwise be deported to leave the US at his own expense but within the time period ordered by the judge, which can be as long as 120 days if requested at the beginning of the proceedings.

An alien who is ordered removed may be barred from reentering the US for at least several years, but one who voluntarily departs is not subject to the penalties of removal. Voluntary departure may be requested before or at the master calendar hearing, after the individual hearing, or at the conclusion of the proceedings.

Finally, the alien can also request for a deferred action which may be granted for humanitarian reasons. It is a form of relief granted not by the judge but in the exercise of prosecutorial discretion by the district director.

The alien must demonstrate that his removal is not a priority of the government. Some of the factors to be considered include the likelihood of ultimately removing the alien; the presence of sympathetic factors; likelihood of a large amount of adverse publicity because of those sympathetic factors; the alien’s continued presence is desired by law enforcement for an ongoing investigation or review; and whether the alien is a member of a class that is  a high enforcement priority.

 

New Bipartisan Bill To Protect DREAMers from Deportation

DREAMers may have found hope against possible deportation in the coming months as a new bipartisan bill that will protect them is underway.

Called the “Bar Removal of Immigrants who Dream and Grow the Economy” or BRIDGE Act, the new bill introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Diane Feinstein (D-CA) and Lisa Murkowski (R-AK) would provide DACA-eligible individuals temporary protection from deportation. They will be placed under “provisional protected presence” similar to the one provided by the DACA or the Deferred Action Against Childhood Arrivals. They will also be granted work permits and will be allowed to continue their schooling after paying the required fees and undergoing background checks.

DACA protected the children of immigrants brought here to the US before turning 16 years old and have remained here, gone to school or worked and maintained no criminal records. But because DACA was merely an executive action, that could be repealed by President-elect Donald Trump, having a bill that would safeguard 740,000 young people from deportation is a glimmer of hope.

Although the text of the actual bill is not yet available as this will be reintroduced in January 2017, the provisional protected presence will be for three years. The proponents of the bill are hopeful that within those three years, they would have been able to pass a more comprehensive immigration reform act that would not only stop deportation for these young people but provide a path to citizenship as well.

The Bridge Act will also be made available not only to those who have already been granted DACA but also to those who will apply for the protection for the first time. It will also ensure that any information obtained by the government under DACA or the new provisional protected presence will not be used for immigration enforcement purposes, with exceptions for national security or non-immigration felony investigations.

Despite Republicans questioning DACA because this was done through executive rather than legislative action and the GOP’s immigration platform being anchored in securing the rule of law, both at the borders and at ports of entry, it is interesting to know that there are some Republican lawmakers that are just as willing to protect the young immigrants just as much as their Democrat counterparts. Aside from Senators Graham and Murkowski, Thom Tillis (R-NC) and Jeff Flake (R-AZ) also expressed their support. However Sen. Durbin wants to add people in pairs- one Republican and one Democrat.

The senator is also hopeful that more Republicans will sign on because “most of them feel it’s only fair to take care of these young people.” He is also hopeful that with Trump slowly softening his immigration stance, they would get a more favorable response. Trump recently told Time magazine that these young people “got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”

Meanwhile, the American Immigration Lawyers Association (AILA) welcomed the new bipartisan bill. William A. Stock, AILA President, said “since DACA’s inception, we’ve seen three-quarters of a million DREAMers come forward in order to have a chance to pursue higher education and careers, in the process becoming productive taxpaying members of society. Senators Graham and Durbin recognize that these young adults are a vital part of our communities and an innovative and creative force that should not be stifled.”

AILA’s Executive Director Benjamin Johnson also said that “the bill is illustrative of the widespread bipartisan support for DREAMers and for reform that recognizes the valuable contributions that they and millions other immigrants have made to this country. Keeping DACA going is not only the right thing to do, it is smart business. Studies have shown that revoking DACA for the hundreds of thousands of current grantees would cost America more than $430 billion over ten years.”

 

New Rules to Benefit Immigrant Workers

The USCIS released last November 18 a final rule aimed at improving the processes for certain employment-based immigrant and nonimmigrant visa programs for highly skilled workers. Called, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, it goes into effect on January 17, 2017.

The new rule is intended to improve the ability of employers to hire and retain highly-skilled workers who are beneficiaries of approved immigrant visa petitions, improve the process of sponsoring nonimmigrant workers for lawful permanent resident (LPR) status and increase the ability of foreign workers to seek better employment opportunities, seek promotions, and change employers, if necessary to further their career.

The changes under the rule conform DHS regulations to existing policies and practices implementing the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The changes would benefit immigrant workers because they clarify and expand when immigrant workers may keep their priority date when applying for adjustment of status. While priority dates cannot be transferred to another alien, it can be retained by an alien for his subsequently filed EB-1, EB-2 or EB-3 petition as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This will help certain workers accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.

For certain workers with approved Form I-140 petitions in the EB-1, EB-2 or EB-3 categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business. The petition will continue to be valid for certain purposes like retention of priority dates, job portability and extension of status.

The job portability provision establishes two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, H-1B and TN classifications including their family members which may be granted to these nonimmigrants at the time of admission or upon approval of an extension of stay or change of status.

A grace period of up to 60 consecutive days is also established for those in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications whose employment has ended prior to the end of the period of validity of their petition so they may be able to find new employment opportunities or extend their nonimmigrant status.

A one-year employment authorization for beneficiaries of an approved EB-1, EB-2 or EB-3 immigrant visa petition is also available if they are currently in the US in E3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status and if an immigrant visa is not yet immediately available to them and they can show compelling reasons for the issuance. Their family members can also obtain employment authorization although this cannot be granted until the principal is granted.

Application to renew employment authorization is also allowed prior to the expiration of the initial grant as long as the alien worker can demonstrate that he continues to face compelling circumstances and he is the principal beneficiary of an approved EB-1, EB-2 or EB-3 petition and either an immigrant visa is not readily available or there is only 1 year or less difference between his priority date and the Final Action Date listed in the visa bulletin for his category and country of chargeability. This eligibility also extends to family members but cannot be granted until the principal is granted.

The new rule also clarifies some policies and procedures pertaining to the H-1B program such as providing H-1B status, beyond the six-year period of admission, determining cap extension, H-1B probability and license requirements.

 

What You Need to Know About Deportation

President-elect Donald Trump has softened his stance on immigration. During his campaign, he vowed to deport all the 11 million undocumented immigrants. In a recent interview however, he said that he would prioritize the removal of the 2 to 3 million with criminal records.

Focusing on undocumented immigrants with criminal records has also been the thrust of outgoing president Barack Obama. In 2015, Secretary of Homeland Security Jeh Johnson said that the focus of the agency’s limited resources was in combating threats to national security, public safety and border security rather than expending funding on individuals charged with minor crimes like traffic violations.

Back in 2011, the government deported a record-high of 396,906 individuals, 90% of those removed were criminals and repeat immigration law offenders. Fast forward to fiscal year 2015 and total deportations declined to 235,415, according to a report dated December 22, 2015 from the Department of Homeland Security (DHS). As of July 2016, ICE has completed 168,781 deportations, a slight decline from the same point in 2015.

While this trend and Trump’s latest pronouncements may ease the worries of some people, it must be noted that those who are without lawful immigration status may still be placed under removal proceedings. It is therefore important for them to know what to do when facing deportation. An increase in sweeps or workplace raids may occur in the coming months.

Contrary to popular belief, unless subject to expedited removal an alien is generally entitled to court proceedings before being removed. Removal proceedings typically start with the service of a notice to appear (NTA) upon the alien.

The NTA specifies, among other things, the alleged immigration violation, the charge against the alien and the specific provision/s of the law alleged to have been violated, and the time and place of the hearing. An NTA may be served in person or by mail. As non-citizens are required to notify the USCIS of any change of address within 10 days of the change, in many cases the ICE may simply mail the NTA to the alien’s last addresses and it would be considered valid service.

If served with an NTA, the alien is strongly advised to consult an immigration lawyer because being placed under removal proceedings is a serious matter. An immigration lawyer can tell him whether proceedings can be terminated because of a problem with the NTA on its face or in the way that it was served. The lawyer can analyze the facts of the case, explain what options may be available, and if the alien would be eligible for a relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

The alien must attend the scheduled master hearing, which is a preliminary hearing where the charges are read and the alien is asked to admit or contest the allegations and whether he intends to seek relief from removal. An individual hearing is scheduled if the case will be heard on the merits.

The alien may be represented by an attorney at the master and individual hearings. However, unless provided pro bono services by a volunteer attorney or by a non-profit organization, any legal representation will be at the alien’s own cost because there is no right to government-appointed counsel in immigration cases.

The alien must keep the immigration court updated of any change of address and must attend his hearings. If he fails to notify the court of an address change, and because he did not receive correspondence he fails to attend a hearing, the proceedings may continue and may result in the alien being ordered removed in absentia.

 

DREAMERS’ Dilemma: To File or Not to File for DACA

Young immigrants known as Dreamers are in a dilemma after the election of Donald Trump as president. Should they file for DACA? Should those with DACA status file for renewal or travel under advance parole?

DACA (Deferred Action for Childhood Arrivals) is an executive action which was announced by outgoing US President Barack Obama back in June 2012 following the failure of the DREAM Act’s passage into law. It is lacking the force of law, and operating under the enforcement discretion of the Department of Homeland Security (DHS), USCIS and the Immigration and Customs Enforcement (ICE). It does not guarantee a path to citizenship but rather defers deportation to those who came to the US before turning 16 years old and have continuously resided in the country, gone to school and have no criminal records.

While it has helped a lot of young immigrants obtain work permits and travel authorization and be protected from deportation during Obama’s presidency, the reality is that executive actions can easily be undone by the next president. With Trump’s platform on undocumented immigrants, it is highly likely that he will end this executive action.

If and when Trump decides to totally scrap DACA, there is still uncertainty as to how USCIS will handle the situation. It is possible that if USCIS will terminate DACA completely, those holding valid work permits will no longer be able to renew. It is possible that the employment authorization and advance parole may remain valid until its expiration.

As of now, it is unclear if Trump will scrap the DACA immediately upon his assumption into office. Given that it usually takes about nine months for an initial DACA application to be adjudicated, it is safe to assume that any new application will not be adjudicated prior to his assumption in office on January 20, 2017. On the other hand, renewals of DACA application are processed quicker.

Thus, to avoid paying the DACA fees with no guarantee that it will not be rescinded, it may be best to defer any new initial DACA application until Trump has completely laid down his stand on the matter. On the other hand, those who plan to renew may opt to submit their DACA renewal as soon as practicable.

For DACA recipients who also intend to travel abroad but have not yet applied for their advance parole, any new Form I-131 application may not be adjudicated prior to January 20 given the current processing times. DACA recipients with advance parole should complete their travel and return to the US as soon as practicable and before January 20 to avoid any problems coming back. One should also bear in mind that the grant of an advance parole does not guarantee admission to the US. DHS may revoke or terminate any advance parole at any time.

Those intending to apply for the first time also have to take into consideration the risk they may be putting themselves into. Because DACA was created through an executive action, there is no statutory provision guaranteeing confidentiality. In fact, it somehow encourages people to come out from the shadows and divulge pertinent information like workplace or school location, in exchange for the promise of deferred deportation and protection. While the information disclosed in a DACA request is protected from disclosure to ICE and Customs and Border Patrol (CBP) for immigration enforcement purposes, there is no guarantee that this will remain the same in the coming months.

What is clear is that those who already applied for DACA already have their information in government hands. Thus, it does not appear that if one were to renew his DACA, that he will put himself in any additional risk. On the other hand, the submission of an initial application at this time would require disclosure of pertinent information that could potentially be used in case of sweeps or workplace raids that may be conducted later on.

What To Expect from Trump on Immigration

Donald Trump’s election as president has caused fear and anxiety in immigrant communities across the US.

It is no secret that central to his campaign was his hard-line stance on immigration. He vowed to deport 11 million undocumented immigrants, build a wall on the US-Mexico border and make the Mexican government pay for it, triple the number of ICE agents, end sanctuary cities and suspend the issuance of visas to certain countries.

In a post-election television appearance on the CBS program “60 Minutes”, he reiterated the same promises and vowed to turn his campaign slogan into concrete actions and move forward with an aggressive policy to deport immigrants. He softened his tone a little bit by saying that he would go after two to three million undocumented aliens who are “criminals and have criminal records”.

But he did not elaborate on how he would hunt down his deportation targets. Some fear that a deportation force would be created to conduct sweeps or raids in homes and in the workplace.

He has reportedly started to assemble his immigration team and this includes at least two notorious anti immigrant activists, Kris Kobach, architect of anti immigrant laws in Arizona and Alabama and Danielle Cutrona, Senator Jeff Session’s counsel, who is avowedly anti immigrant.

Now more than ever, undocumented immigrants fear deportation and separation from their families. Immigration lawyers are likewise experiencing a surge of panic-stricken families who are anxious about their future. Even Filipino migrant workers are also worried about their jobs especially since Trump has espoused a more protectionist stance and that includes “bringing jobs back to Americans.” Filipino workers fear that their contracts may abruptly end when the new president assumes office in January. Immigrant workers whose petitions are now pending are likewise anxious that they may not be able to make it here due to Trump’s statement last August 4 in his campaign in Portland, Maine tagging nine countries, including the Philippines, as terrorist nations.

To what extent will he be able to muster his executive might to be able to fulfill his ideas to “make America great again”?

We can expect that Trump will muster his executive might by way of executive actions. He will undo Pres. Obama’s policy on Deferred Action for Childhood Arrivals (DACA).As a result, more than 700,000 young immigrants who came to the US before turning 16 and have stayed here since June 15, 2007 will find themselves in a limbo. It is very unfortunate because they have long ties with the US and have already considered it to be their home and if Trump will push through with scrapping DACA, they will not be able to attend school or find work.

It is also to be expected that Trump will totally scrap Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) which is now on hold following a preliminary injunction placed by the lower Texas court and upheld by the Fifth Circuit Court. This is sad news for those who have no lawful immigration status although they have continuously resided in the US since January 10, 2010 and have a US citizen or LPR son or daughter. Immigrant rights advocates fear that scrapping DACA and DAPA altogether will disrupt family unity and ultimately become economically disadvantageous. This would mean separation of families among affected immigrants. This could also adversely affect businesses and the local economy as certain sectors like agriculture are dependent on the labor force provided by the immigrant population.

Communicating with the National Visa Center

The National Visa Center (NVC) processes approved immigrant petitions and K visa applications after they are forwarded from the United States Citizenship and Immigration Services (USCIS). It is where all immigrant visa pre-processing is done including collection of paperwork and payment of fees before these are sent to the consular posts overseas for adjudication.

Certain petitions are held by the NVC for a long period of time while awaiting for their priority date to become current. During this waiting period, it is important to communicate to the NVC certain changes that will happen to either the petitioner or the beneficiary like a change of address, change in marital or civil status, death of the petitioner, birth or adoption of children, withdrawal of petition or application, among others.

One should allow up to six weeks after the receipt of an I-797 from the USCIS before contacting the NVC pertaining to a case. During such period, the USCIS sends in all documents about the case to the NVC and the latter enters it in its database.

When sending in the needed paperwork like the civil documents, do not send the originals. Submit clear photocopies of birth certificates, marriage certificates, passport, and police clearance, for example. The only original document that has to be submitted is the I-864 Affidavit of Support. Keep the original copies of the aforementioned documents and bring them to your scheduled visa interview.

To check the status of your case, you can visit the Department of State’s Consular Electronic Application Center (CEAC) website. Enter your case number if you have an immigrant visa case or enter your interview location and case number if you have a nonimmigrant case. This is also the same website you can use to pay for the visa fees once the NVC sends in your fee invoice. Your case number is the alpha-numeric combination that is assigned to you and is reflected in all communications from the NVC and the USCIS.

You should promptly respond to any communications from the NVC especially when a visa number becomes available in your case. The law requires the Department of State to terminate the registration of a beneficiary who does not apply for an immigrant visa within a year after notification of visa availability.

One can send emails and mails although the former is preferred as it is more convenient. However, it is important to follow a certain format as the NVC will not respond if this is not strictly followed. Use the case number or receipt number assigned to you in the subject line. Each email must indicate the petitioner’s name, the beneficiary’s name and date of birth as well as the case number, priority date, preference category and foreign state chargeability or the consular post overseas that will adjudicate your case. These must be indicated at the very top of the email. Make your inquiry brief and avoid unnecessary background information. Avoid inquiring about multiple cases in one email.

You can likewise call the NVC hotline numbers. A new phone system has recently been installed so it increased the available phone lines that can cater to client’s inquiries by 25%.

Immigration Fees to Increase Effective Dec. 23

Effective December 23, fees for most immigration applications and petitions will increase by an average of 21 percent.

The increase will be the first in six years. A comprehensive review had determined that the USCIS was not recovering the full costs of processing immigrant benefits. Lack of congressional appropriations especially for the asylum, refugee, military naturalization services, and the SAVE program that were ordinarily reliant upon Congress’ budgetary allocation likewise affected this move.

To recover the full cost of services including costs of fraud detection and national security, customer services, case processing and providing benefits without charge to refugee and asylum applicants, the fee increases had to be imposed, said USCIS director Leon Rodriquez.

For those applying for naturalization, there will be an increase in the standard fee for Form N-400 from $595 to $640. Fee waivers will still be available to those who meet the requirements under the law. A reduced fee of $320 will be offered to naturalization applicants with family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

For those who are claiming US citizenship due to birth abroad to US citizen parent(s) and need proof of US citizenship through Form N-600 and N-600K, there will be an increase from $600 and $550, respectively, to $1,170. This is essentially a 95% increase compared to the old schedule and one of the more substantial raises.

Fees for family-based petitions will go up as well. I-129F Application for Alien Fiancé(e) will increase from $340 to $535; I-130 Petitions for Alien Relative from $420 to $535. Under the current fee schedule, the total filing fee for a one-step, concurrent filing of Form I-130, Form I-485, Form I-765 and Form I-131 is $1,490; this will be bumped up to  $1,760. I-485 Application to Register Permanent Residence will also increase from $985 to $1,140. I-751 Petition to Remove Conditions on Residence will increase from $505 to $595.

Employment-based petitions will not be exempted either. I-129 Petition for Nonimmigrant Worker will increase from $325 to $460 which is a 42% increase and one of the highest increases for this service since 2007. I-140 Immigrant Petition for Alien Worker will increase from $580 to $700.

I-601 Application for Waiver of Grounds of Excludability and I-601A Application for Provisional Unlawful Presence Waiver will both increase from $585 to $930 and $630, respectively. Fees for employment authorization permits (I-765) will increase from $380 to $410. This increase will affect foreign students approved for Optional Practical Training (OPT), spouses of certain nonimmigrant visa holders as well as recipients of DACA and TPS applicants.

Biometric or fingerprinting fee will remain at $85.

Applications and petitions postmarked on or after December 23, 2016 must pay the new fees or they will not be accepted.

E-1 or E-2 Visa for Foreign Employees

A person can obtain an E-1 or an E-2 visa without necessarily being a treaty investor or a treaty trader.  He can obtain an E-1 or E2 employee visa instead. A noncitizen employee of a treaty trader may obtain an E-1 visa and a noncitizen employee of a treaty investor may obtain an E-2 visa, if said employee is coming to the US to perform duties that are executive or supervisory in character, or, if he has special qualifications that are essential to the efficient operation of the enterprise.

There are a few things to be considered before applying for said visa. First and foremost is that as an employee of a treaty trader or treaty investor, you must have the same nationality as your employer. Since this is also a treaty-based visa, it is important that your employer comes from a country that has a standing treaty or bilateral relations with the United States to be able to engage in economic and commercial relations. It is important that you determine what the nationality of your employer’s business is. A business that is at least 50% owned by treaty nationals is eligible to become E-1 or E-2 visa recipient and the employees are, too.

The Philippines is one of the many countries that have commercial and navigational relations with the US. In fact, the Philippines has one of the longest treaty relations that started back in Sept. 6, 1955.

It is important also to consider what your role is to your company. In order for one to be eligible for an E-1 or E-2 employee visa, one should be an essential, managerial or executive employee of the company.

To be considered as an essential employee, you must be a specialist and not merely an ordinary skilled worker. You do not need to have an executive or supervisory function if your E-1 or E-2 employee visa application is based on being an essential employee. One must bear in mind that the United States Citizenship and Immigration Services (USCIS) looks into how your skills actually contribute to the successful operations of the company. They look into your expertise in the area or your length of training or experience as well as your salary. They also consider the availability of American workers in your field of expertise to consider your essentiality in the business. In one case, E-2 employee visa applicants who were nationals of Great Britain and employed by IAD Modern Design, Ltd. which at that time, had a contract with General Motors (GM), were considered essential to the company since it was proven that there was not enough American automotive design engineers who can do what they do best— redesign GM line of cars into smaller, Europe-style vehicles.

Your duty or position may also have an executive or supervisory character and USCIS looks not just into the title of the position vis-à-vis the business’ organizational structure but it also looks into your degree of control and responsibility in the operations of the company, the number and skills of the employees you will supervise, your salary level as well as your qualifying experience. Your executive and supervisory function must be your principal and not merely an incidental function.

Getting an E-1 or an E-2 employee visa can entitle one to work and live in the US and bring their family here as well. The good thing is that the spouse or children of the employee need not have the same nationality as the treaty trader or treaty investor employing the principal applicant. The E-1 or E-2 employee visa is issued for up to five (5) years and it can be renewed indefinitely in five-year increments.

While holding said visa, the E-1 or E-2 employee can obtain public education access for their children and access to universities without the need to apply for a student visa; obtain a social security number and of course, open bank accounts and get a driver’s license.

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