Seguritan US Immigration Articles

Hardship Standard for Cancellation of Removal

Cancellation of removal for aliens is a form of relief available to individuals in removal proceedings. When an immigration judge grants cancellation, the basis of the alien’s deportability is forgiven and he will be able to adjust status and become a lawful permanent resident.

Despite the tremendous benefit in a successful cancellation case, the eligibility requirements are hard to meet, particularly the showing of hardship that the applicant must make, as demonstrated in a case decided by the 7th Circuit Court of Appeals on March 22, 2012.

In that case, a Mexican national was placed in removal proceedings 11 years after he entered the U.S. illegally in 1989. His application for cancellation was denied by the immigration judge on the ground that his removal would not result in “exceptional and extremely unusual hardship” to his U.S. citizen children.

At his cancellation hearing, he testified that, although his parents still lived in his hometown in Mexico, he and his family would be unable to stay with them because his parents lacked the resources to support them. He also said that his father, who had a business, would be unable to offer him a job.

He further testified that there were not enough housing and employment opportunities in his hometown, and that it was a place of violence and murder. He also argued that his two daughters, age 18 and 13, would need to reenter the Mexican education system where they would have difficulty taking classes in Spanish.

His 18-year old daughter testified and expressed concern about her college prospects in Mexico since it would be very expensive and the nearest university was quite distant from Morelos. She also said that her 13-year old sister cannot read or write in Spanish and would have a difficult time adjusting in Mexico after becoming acculturated in the U.S.

The respondent alien also argued that if his children remained in the United States, they would need to be supported by the income of their mother alone and the money that he had saved in the bank.

After the immigration judge denied his cancellation application, he unsuccessfully appealed to the Board of Immigration Appeals. Claiming due process violations, the alien filed a petition for review with the 7th Circuit which, however, denied his appeal.

Any alien who wants to consider applying for cancellation of removal should first seek competent counsel due to the stringent eligibility requirements and the possible risks involved in the application.

One must satisfy several requirements in order to be eligible for this relief. First, the alien must have been physically present in the United States continuously for at least 10 years immediately preceding the date of the application.

Second, he must be able to demonstrate good moral character for that entire 10-year period. Certain individuals are automatically disqualified from establishing good moral character, such as habitual drunkards, prostitutes, smugglers, and persons convicted of crimes of moral turpitude, multiple crimes or most drug crimes. Even if an individual is not disqualified, he must affirmatively show good moral character.

Third, he must not have been convicted of certain specified offenses. This is regardless of whether the conviction occurred in the 10-year period for good moral character.

Fourth, he must show that his removal would result in exceptional and extremely unusual hardship to his spouse, parent or child, who is a U.S. citizen or a lawful permanent resident. Some of the factors that may be considered are family separation, community ties, medical and health conditions, and conditions in the country of return.

Even if the alien is found to be eligible based on these requirements, it is up to the judge to determine whether he deserves cancellation of removal. Since it is a discretionary form of relief, there is definitely no guarantee that it will be granted.

Note that cancellation of removal is only available in removal proceedings. If an alien has not yet been served with a notice to appear by the Immigration and Customs Enforcement and he sees cancellation of removal as his last hope for a green card, he would have to present himself first to the immigration authorities before he can request cancellation from a judge.

But such a move is risky because the hardship standard is very high and, even if the alien meets the eligibility requirements, the judge in the exercise of his discretion can still deny the application. If the alien is unsuccessful in his request for cancellation, he would have to depart the United States.

New USCIS Memo Benefits R-1 Religious Workers

The religious worker (R) visa program was created more than 20 years ago to allow foreign religious workers to perform religious duties in the United States on a temporary basis. The program was intended to enable churches, mosques, synagogues and other religious organizations, which had been struggling to find qualified workers, to better serve their communities.

After a government study found widespread fraud in the R visa program, the USCIS made significant changes in November 2008 to both nonimmigrant (R-1) and immigrant religious visa regulations.

The R-1 religious worker classification is for ministers and persons working in a religious vocation or religious occupation coming temporarily to the U.S. to be employed at least part time by a non-profit religious organization. The maximum period of stay in R-1 status is 5 years

In the year that the new regulations took effect, the number of R visas issued dropped from more than 13,000 to just below 4,000.

Just recently, the USCIS announced a policy change that would be beneficial to R nonimmigrants. Religious workers in R-1 status are now allowed to recapture time spent outside the United States. “Recapture” is a benefit that until now was enjoyed only by H-1B and L-1 nonimmigrants and their families.

Under the new policy explained in the memorandum dated March 8, 2012, time spent by the R-1 nonimmigrant traveling or residing outside the U.S. following initial admission in R-1 status could now be subtracted from the maximum period of stay in the U.S. in R-1 status.

Previously, an R-1 nonimmigrant who had spent 5 years in the U.S. on R-1 status needed to reside abroad and be physically present outside the U.S. for the immediate year before being readmitted or granted an extension of stay.

Now, only time actually spent in the U.S. in R-1 status can be counted towards the maximum authorized stay of 5 years. Any trip of at least one 24-hour calendar day outside the U.S. can be recaptured. The reason for the alien’s absence is irrelevant.

The religious worker’s spouse and child on R-2 dependent status also benefit from the recapture. The updated regulations state that if the R-1 nonimmigrant is able to recapture a two-week trip abroad, his/her dependents should be given an extension of stay up to the new expiration of the R-1 alien’s period of stay.

The petitioning organization carries the burden of proof to establish eligibility for time recapture. It must submit evidence documenting the beneficiary’s periods of physical presence outside the U.S. Although summaries and charts of travel are helpful, the petitioner must remember to include independent documentary evidence of the time sought to be recaptured, such as copies of the passport stamps, I-94 cards, and plan tickets.

This policy change recognizes the fact that ministers and religious workers sometimes have to perform religious services abroad and as a result spend weeks, if not months, outside the United States. At times, they leave the U.S. for their home country for personal reasons.

The policy memo also acknowledges that the petitioning organization’s need for the workers’ services does not end at exactly the same date as the expiration of period of stay requested in the petition.

USCIS Updates H-1B Guidance as Filing Season Begins

April 2, 2012 marks the start of the filing period for cap-subject H-1B petitions for Fiscal Year 2013. On that date, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting petitions with a start date of October 1, 2012 or later, until the 65,000 cap is reached.

A recent report found that the USCIS has been denying H-1B petitions and issuing Requests for Evidence (RFE) at higher rates. Denial rates for all nationalities increased from 11% in FY 2007 to 29% in FY2009. It remained higher than in the past at 21% in FY 2010 and 17% in FY 2011.

RFE rates also skyrocketed from only 4% in FY 2004 to 18% in FY 2007 and to a high of 35% in 2009. The RFE rate for H-1B petitions in FY 2011 was 26%, which is still a dramatic increase from the past.

Given these high denial and RFE rates in H-1B adjudication, employers are reminded to follow USCIS regulations affecting H-1B employment. One such regulation is the Neufeld Memorandum which discusses the requirement to establish a valid employer-employee relationship throughout the requested H-1B validity.

Aside from the usual requirements for an H-1B petition (i.e., a beneficiary is coming to the United States temporarily to work in a specialty occupation and he/she is qualified for such occupation), the H-1B employer must demonstrate that it has the right to hire, pay, fire, supervise or otherwise control the beneficiary’s employment.

In the Q and A guidance dated March 12, 2012, the USCIS clarified certain issues regarding the right of control in non-traditional H-1B employment scenarios.

Where the petitioner is a consulting or staffing company, a valid employer-employee relationship could still be established if the petitioner has the right to control the work of the beneficiary. The petitioner can submit evidence showing that it will pay the beneficiary’s salary, determine the beneficiary’s location and relocation assignments, and perform supervisory duties over the beneficiary.

In cases where the beneficiary will be placed at a third-party worksite, the USCIS explained that the petitioner is not required to submit documentation from the end-client identifying the beneficiary, although such evidence would be helpful. A combination of any of the documents in the Neufeld Memo may establish that the required relationship exists.

Evidence that could be submitted in initial petitions include an itinerary of services or engagements, signed employment agreement, employment offer letter, and contracts between the petitioner and a client. For extension petitions, the employer may include pay records, payroll summaries or W-2 forms, work schedules and samples of the beneficiary’s work product, among other types of evidence. The types of evidence listed in the memorandum are not exhaustive.

Petitioners who fail to initially provide sufficient evidence of an employer-employee relationship may be given an opportunity to correct the deficiency in response to an RFE. In order to avoid unnecessary delay, however, it is better to submit all available evidence with the initial submission.

Petitioners of H-1B employees who will work in more than one location must submit a complete itinerary, which is required by the regulations, and an LCA specific to each work location.

The employer-employee relationship must also be shown to exist for the entire duration of the requested validity period. Otherwise, the USCIS will limit the validity to the time period of qualifying employment as established by the submitted evidence.

In case of continuation or change in previously approved employment, if the petitioner did not maintain a valid employer-employee relationship throughout the validity of the previous petition, USCIS will deny the extension unless there is a compelling reason to approve the new petition.

Aliens of Extraordinary Ability May Self-Petition for a Green Card

Every year, more than 40,000 immigrant visa numbers are available for the first employment-based preference (EB-1). This category is open to aliens of extraordinary ability, outstanding professors or researchers, and certain multinational executives and managers.

Unlike the last two classes of workers, the extraordinary ability alien does not need a job offer from a U.S. employer. The extraordinary ability alien may “self-petition” or file an I-140 him/herself. There is also no labor certification requirement for workers in the EB-1 category.

The demand for this category is low. In 2010 for instance, only 5,198 applications were filed. At the same time, however, approval can be difficult to obtain. Of those 5,198 applications, only 62% were approved and this is already the highest approval rate since 2005.

Nonetheless, for those who can meet its high requirements, the EB-1 is a good option not only because of the exemption from the job offer and labor certification requirements but also because there is currently no visa backlog under this category.

In order to qualify, the foreign national must show that he has extraordinary ability in the sciences, arts, education, business or athletics. He must be able to demonstrate that his level of expertise indicates that he is one of a small percentage of those who have risen to the very top of the field of endeavor.

The foreign national must have been recognized in his field and received acclaim for those accomplishments. This can be done in either of two ways. First, it can be through a one-time achievement in the form of an internationally recognized award. In reality, however, very few people receive this type of international acclaim.

More frequently, applicants use the second way of demonstrating extraordinary ability status which is by submitting evidence of at least three of ten criteria, or the so-called “three-out-of-ten” rule.

These criteria are: receipt of lesser nationally or internationally recognized prizes or awards for excellence; membership in associations in the field that demand outstanding achievement of their members; published material about the alien in profession or major trade publications or other media; evidence of original contributions of major significance to the field; authorship of scholarly articles; display of the alien’s work at artistic exhibitions or showcases; evidence of performance in a leading or critical role for organizations that have a distinguished reputation; evidence of high remuneration in relation to others in the field; and evidence of commercial success in the performing arts.

Published material about the foreign national must relate to his work in the field for which the classification is sought and must contain the title, date and author of the material and a translation if necessary. As for the criterion of proof of membership in an association, the focus of the USCIS’s inquiry is the requirements for membership and not the association’s overall reputation.

When it comes to evidence of contributions of major significance to the field, the foreign national must show that his contributions significantly influenced the field and place him significantly above his peers.

Evidence of high remuneration as compared to others in the field is also helpful but less so for individuals in science or education where salary levels are not good indicators of the worker’s ability, unlike in athletics or the performing arts.

In order for the extraordinary ability alien to be eligible for a visa under EB-1, his entry must “substantially benefit prospectively the United States”. This means that he must continue to work in his field upon admission to permanent residence.

Scroll To Top