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Immigration Reform at the Forefront Again

The enactment of Arizona’s anti-immigrant law has prompted President Obama and Senate Majority Leader Harry Reid to move comprehensive immigration reform to the top of their agenda. 

The new law which is considered to be the harshest in the nation was signed by Governor Jan Brewer last April 24. It requires police officers to stop people that they reasonably suspect are unlawfully present in the U.S. and ask them for their immigration documents. Failure to carry immigration documents will subject an individual to criminal penalties.

 Before the law was signed, President Obama criticized it as “misguided” and contrary to “basic notions of fairness”. He instructed the Justice Department to “examine the civil rights and other implications of the law.”

 But Governor Brewer, despite the overwhelming number of callers asking her to veto the bill said that the law “represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” 

By putting the blame on Washington’s failure to reform our broken immigration system, Governor Brewer has forced a renewed national debate on the issue. President Obama underscored the urgency when he said that, “Our failure to act responsibly at the federal level will only open the door to irresponsibility by others.” 

But comprehensive immigration reform legislation will not be easy to pass. Senator Lindsey Graham, who has been working with Senator Charles Schumer on a draft of a Senate immigration bill protested the sudden rush to take up immigration and derailing the climate bill that he and Senators John Kerry and Joe Lieberman have been planning to introduce. “Moving forward on immigration in this hurried, panicked manner is nothing more than a cynical political ploy,” he said. 

Republican leaders in the Senate have also pledged to block immigration reform. Senator Mitch McConnell said that this is not the time to take up the issue while Senator Saxby Chambliss said that other issues pending in Congress must be tackled first. 

Eleven Republican senators were in favor of immigration reform during the Bush administration when it passed the Senate. It is not clear how much support it has now. Senator John McCain who co-authored a bill with Senator Ted Kennedy a few years ago is no longer advocating for reform. In fact, he supported the Arizona bill hours before its approval by the Arizona Senate as he faces a tough reelection fight. 

Meanwhile, the new law has sparked widespread protests. Mass rallies have been held almost daily in Arizona and in other states since the passage of the law. Several groups have called for an economic boycott. The City Attorney and the members of the Board of Supervisors of San Francisco have proposed not to do business with Arizona. 

Lawsuits are being planned. Attorney General Eric Holder has said that the federal government may challenge the new law in court. The American Civil Liberties Union also said that civil rights organizations are already preparing their suits. 

Many constitutional scholars say that the federal government, not the states, is in charge of controlling immigration and enforcing immigration laws. Moreover, the new law according to them violates the guarantees of due process and equal protection and the provision against warrantless arrest. 

The immigrant community must join those who have expressed their outrage against this latest threat to their fundamental freedoms. At the same time, they must participate in the many mass actions that are being scheduled in several states to push for immigration reform.

Adjudicating Adjustment Applications of Surviving Relatives

The United States Citizenship and Immigration Services (USCIS) has started to approve adjustment of status applications filed under the new law by surviving family members of deceased petitioners. We filed an adjustment application last December on behalf of a daughter of a deceased father and after three months, the said daughter received her green card. 

The father had filed his I-130 petition in January 1998 but because of the huge backlog in the family-based 2B preference for her country, her visa number became available only in April 2009. She did not file her adjustment application at that time because her father had died in October 2004 and therefore, the I-130 petition was automatically revoked. 

The new law which became effective last October 28 was part of the Department of Homeland Security Appropriations Act for FY 2010 (Public Law 111-83). Two measures benefiting surviving relatives were contained in that law. 

The first measure ended the so-called widow penalty by allowing widows of U.S. citizens and their children to self-petition for themselves although they had been married only for less than two years. The second measure added a new provision to the Immigration and Nationality Act granting immigration relief to other surviving relatives. 

The surviving relatives with pending or approved petitions who benefit under the second measure of the law are the spouse, parent and minor children of a U.S. citizen; the married or unmarried son or daughter of a citizen; the spouse or child of a permanent resident and the brother or sister of a citizen. Also covered are the derivative beneficiaries of pending or approved employment-based petitions, the beneficiaries of asylee/refugee relative petitioner and nonimmigrant in T or U status and asylees. 

One of the requirements of the second measure is that the surviving relative must be residing in the U.S. at the time of death of the petitioner and must continue to reside in the U.S. Residence in the U.S. should mean domicile and not physical presence. So that if the surviving relative was on vacation abroad at the time of the petitioner’s death or was with the petitioner at the time of his/her death abroad, the relative should be eligible to file an adjustment application. 

There is a question as to whether the second measure that refers to other surviving relatives should be applied retroactively. It is not clear from the language of the law whether applicants whose qualifying relative died before the enactment of the law are covered. Some point out that they are not because while the first measure that ended the widow penalty specifically provided for its retroactive application to “transition cases”, no similar language was provided in the second measure referring to other relatives. In the case of our client, the USCIS adjudication office agreed with us that the law should be applied retroactively. 

The law also provides that any “related applications” may be adjudicated with the petition or the adjustment of status application. It could be argued that this provision allows the filing of waiver applications by applicants who are inadmissible or removable under existing immigration laws.

Changing F-1 Student’s Status to H-1B

To change a nonimmigrant status to another, an applicant must be in lawful status not only up to the time that the application is filed but also up to the time when the new status becomes effective. 

In the case of a change to cap subject H-1B for fiscal year 2011 that starts on October 1, 2010, the applicant must have a valid status until that date. If the applicant is out of status, he/she is required to leave the U.S. and apply for H-1B visa at a U.S. consulate abroad. 

The cap refers to the 65,000 annual numerical limitation imposed on initial H-1B visas. In the last several years, the number of H-1B petitions filed exceeded the cap. The latest United States Citizenship and Immigration Services (USCIS) report shows that so far, 13,500 petitions were received since the start of the filing period on April 1. It is expected that the cap will again be reached before the end of 2011 fiscal year. 

There is a new immigration regulation that automatically allows certain students with a pending or approved H-1B petition to remain in the U.S. during the time when the F-1 status and work authorization would otherwise expire. This regulation provides a way to fill what is referred to as the cap gap so that the students do not have to go abroad to obtain their H-1B visas. 

An example of a cap gap occurs when a student’s optional practical training (OPT) ends in the spring and his/her status expires 60 days after that, leaving a gap of several months before the H-1B status begins on October 1. 

To qualify for the cap gap extension, the H-1B petition must be filed while the student’s authorized duration of status (DS) is still in effect (including any OPT period and the 60 day preparation time known as the grace period.) 

Once the petition is timely filed, the cap gap extension begins and will continue until the adjudication of the petition is completed. To prove continuing status, the student should obtain an updated Form I-20 from his/her designated school official. 

If the H-1B petition is subsequently rejected, denied or revoked, the student will be entitled to the standard 60-day grace period to prepare to depart unless the denial or revocation is based on fraud, misrepresentation or status violation. The grace period begins on the date that the letter of rejection, denial or revocation is postmarked. 

If the H-1B petition is denied or withdrawn, the student may apply for a STEM OPT extension provided that his/her degree is included on the STEM designated degree program list and the application is made within ten (10) days of the denial or withdrawal. STEM refers to degrees in science, technology, engineering and mathematics. Students who obtained such degrees are eligible for a 17-month extension in addition to the twelve (12) months initially granted. 

The student who is granted an automatic extension cannot travel outside the U.S. during the cap gap period. If the student wants to travel, he/she will have to apply for an H-1B visa at a U.S. consulate abroad.

Eligibility Requirements for E-2 Visa

Foreign nationals seeking to come to the U.S. to invest in a business enterprise may obtain an E-2 visa.

The applicant must be a national of a country with a treaty of friendship, commerce or navigation with the U.S. and must demonstrate that he/she will develop and direct the investment enterprise.

The E-2 investor may be admitted for an initial period of two years and may be granted extension in increments of not more than two years. The spouse and minor children may join as dependents. The spouse but not the children may obtain employment authorization. The children may attend school.

There is no fixed dollar amount of investment required but the applicant must be able to show that it is substantial. It must not be an investment solely for the purpose of earning a living for the investor and his/her family.

Investments as defined by the regulations must pertain to funds or assets placed at the disposal of the business with the objective of making a profit and subject to a risk of loss incident to the business operations.

The E-2 applicant must be able to show that he/she possesses and controls the capital funds invested or being invested. The source of the funds need not be outside the U.S. as long as these were received through legitimate means. It can be received through a legacy, gift, savings, or inheritance from a U.S. source. However, while the capital funds can be inherited, an already operating business could not be inherited to be a considered a valid investment under E-2.

The substantial capital funds required must meet the proportionality test. This means that the amount of capital is substantial in relationship to the cost of purchasing or creating the business. It must be of such amount to support the likelihood that the investor will successfully develop and direct the enterprise.

The funds must be irrevocably committed to the business or enterprise and subject to the risks of conducting business in the U.S. whether it would result in profit or loss, either partial or total. The debt cannot be secured by the assets of the business itself but may be secured by the personal assets of the alien investor to be considered as qualifying investments.

Since the capital funds required are substantial, there may be issues on how to meet sufficient investment requirements to qualify for an E-2 treaty investor visa.

The original owner of the funds may be a U.S. citizen or green card holder and may give or lend money to a person or corporation holding treaty nationality so that this person or entity can qualify as an E2 investor. The E-2 investor then may also be eligible to bring in E-2 employees.

Two individuals wanting to invest in the same business but individually do not have enough funds to meet the substantiality requirement may also pool together their funds in that same business with one being the principal investor while the other just a donor or lender of the funds. Once qualified for E-2 visa, the principal E-2 investor may bring in the other as an E-2 employee.

Several investors may also pool together their funds and invest in a holding corporation for the purpose of investing and conducting business in the U.S. The holding corporation which should have treaty nationality shall act as the principal investor to be eligible for E-2 classification. Once qualified as E-2 investor, it can then petition some or all of the shareholders as E-2 employees.

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