Seguritan US Immigration Articles

Allowed to Keep Green Card Despite Fraud

A green card obtained through a fraudulent scheme is invalid. Similarly, the green card of an alien who acquires lawful permanent residence on the basis of a visa petition filed by a holder who obtained his green card by fraudulent means is also invalid and he is inadmissible to the U.S. However, he may file a waiver of inadmissibility under Section 212(k) if he was not aware of the fraudulent scheme.

A Section 212(k) waiver may be granted if the alien was not aware of his ineligibility for admission and could not have ascertained his ineligibility by the exercise of reasonable diligence.

A case recently decided by the Board of Immigration Appeals involved Jin Hee Shin, a citizen of the Republic of Korea, who obtained her green card through her mother whose green card was issued through a criminal fraudulent scheme.

In 1991, Shin’s mother obtained a green card for herself by paying a bribe to a corrupt officer of the Immigration and Naturalization Service. Shortly thereafter, her mother filed an alien relative petition on her behalf as an unmarried daughter of a lawful permanent resident. The visa petition was approved in 1992.

Shin was granted lawful permanent residence status on the basis of her mother’s visa petition in 2002 and she entered the U.S. The fraud was not known to her. Her mother told her that she obtained her green card on the basis of employment as hairdresser on a U.S. Military base in Korea.

When the Department of Homeland Security (DHS) found out that Shin’s LPR status resulted from her mother’s bribery, she was placed in removal proceedings. She applied for Section 212(k) waiver with the immigration judge who denied her request. The decision was sustained by the Board of Immigration Appeals (BIA) finding Shin ineligible for the waiver.

The Ninth Circuit Court sustained Shin’s appeal and found her eligible to apply for a waiver under Section 212(k). The court reasoned that the waiver may be granted to an immigrant who is inadmissible at entry due to the lack of a valid immigrant visa and was not otherwise inadmissible on other grounds. The case was remanded to the immigration judge to hear the merits of her waiver application.

On remand, Shin testified that she went to South Korea in early 2003. While she was in South Korea, her brother, who was also an LPR, called her and informed her that there might be a problem with her mother’s green card and that she should return to the U.S. immediately, which she did in the next two weeks.

The immigration judge denied her waiver application. The court pointed out that Shin was placed on notice that her green card was defective but she did not inquire from her mother about the problem and entered the U.S. using her problematic green card. Because she failed to exercise any diligence to ascertain information regarding her defective green card, she was not eligible for the waiver.

The BIA reversed the lower court’s decision and concluded that eligibility for the 212(k) waiver depended on her state of mind when Shin applied for admission as an immigrant in 2000 and not when she returned as an LPR in 2003.

Also, the BIA reasoned that as a matter of discretion, Shin could not be held responsible for the fraudulent acts committed by others without her knowledge. Moreover, she had a facially valid green card which authorized her to enter the U.S. She had a home and was employed as registered nurse in the U.S.; therefore it was expecting too much of her to abandon her residence in the U.S. simply because her brother informed her of a “problem” with her green card, a problem which she was not even aware of. The BIA sustained her appeal and found her eligible for the 212(k) waiver.

Employment-based Priority Dates Continue to Advance

The August 2014 Visa Bulletin shows that the Philippine employment-based third preference (EB-3) cut-off date will jump by seventeen weeks from January 1, 2009 to June 1, 2010.

China will advance by over two years to November 1, 2008 and India will move by over one week. The third preference cut-off date for all other countries will remain at April 1, 2011.

The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by over three months to October 8, 2009 while India’s cut-off date will move by more than four months to January 22, 2009. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – April 22, 2007; F-2A – May 1, 2012; F-2B – July 1, 2007; F-3 – November 15, 2003 and F-4 – January 1, 2002.

The Philippines cut-off dates are: F-1 – June 1, 2004 (advance by 17 months); F-2A – May 1, 2012; F-2B – October 8, 2003; F-3 – April 15, 1993 and F-4 – January 22, 1991.

The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued under certain preference categories. The cut-off dates in the Visa Bulletin are established to ensure that that the immigrant visas issued each year do not go beyond the limit established in the INA.

If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

Because of the long wait period, beneficiaries of employment-based preference petitions, such as foreign nurses sponsored under the EB-3 category whose priority dates are before June 1, 2010 may be required to update their documents such as their visa screen certificate and professional license, among others.

Also, the USCIS has recently required adjustment applicants to submit a new Form I-693 (Report of Medical Examination and Vaccination Record). Since about 2004, the USCIS has extended the validity of the civil surgeon’s endorsement on Form I-693 until the adjudication of the adjustment of status application but effective last June 1, Forms I-693 which are more than one year old were no longer valid.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and who are outside the United States will have to apply for an immigrant visa at a consular post abroad. Those who are currently living in the U.S. may apply for adjustment of status.

Those with pending adjustment of status application will be allowed to remain and work in the U.S. while their adjustment application is being adjudicated. Beneficiaries of employment-based preference petition whose adjustment of status has been pending for 180 days or longer may transfer to another employer pursuant to the portability rule subject to certain eligibility requirements.

The portability rule under the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) allows an adjustment applicant to change employers if the new job is in the same or similar occupational classification, the Form I-140 has been approved or is approvable when concurrently filed with the adjustment application and the I-485 application has been pending for 180 or more.

The 180-day period starts from the date the I-485 application was received by the USICS as indicated in the USCIS receipt notice. If the adjustment applicant meets all the requirements, he may change employers under AC21. It is however advisable for the adjustment applicant to notify the USCIS after he starts his new employment in order to avoid Requests for Evidence or Notice of Intent to Deny from the USCIS.

Late Filing for CSPA Benefit May Be Excused

Since its enactment on August 6, 2002, thousands of children who would have otherwise aged out or became ineligible to receive a green card simply by turning 21 years old have benefited from the Child Status Protection Act (CSPA). Under the CSPA, a child who has turned 21 may still be considered a “child” or under 21 for immigration purposes.

In calculating the age for derivative beneficiaries of family-based and employment-based categories, the amount of time the petition was pending is subtracted from the child’s biological age on the date when visa number becomes available to the principal beneficiary. The child will retain his derivative status if his adjusted age is below 21 but there is the additional requirement that he sought to acquire lawful permanent residence status within one year of visa availability.

A child is considered to have met the “sought to acquire” requirement if he filed Form I-485, application for adjustment of status, submitted Form DS-230 or application for immigrant visa and alien registration or Form I-824, application for action on an approved application or petition filed on his behalf.

If the child did not do any of the above within one year of visa availability, he may still be entitled to CSPA protection if he can show that his application was rejected for technical or procedural reasons or his failure to timely file was due to “extraordinary circumstances” beyond his control.

The USCIS recently released an interim policy memorandum allowing officers to use discretion in adjudicating late filings. Previously, USCIS policy did not allow the exercise of discretion. The change in policy was released in line with the decision of the Board of Immigration Appeals in Matter of Vazquez, allowing the exercise of discretion in these determinations.

In order to establish extraordinary circumstances, the applicant must demonstrate the following: (1) the circumstances were not created by the alien through his own action or inaction, (2) the circumstances were directly related to the alien’s failure to file the application within the one year period; and (3) the delay was reasonable under the circumstances.

The policy memo also outlines examples of extraordinary circumstances which may warrant a favorable exercise of discretion which include, among others, serious illness or mental or physical disability during the one year period and legal disability such as instances where the applicant was suffering from mental impairment during the one year period.

Ineffective assistance of counsel may also be considered an extraordinary circumstance if the applicant satisfies the following requirements: that the alien files an affidavit setting forth in detail the agreement entered into with counsel with respect to the actions to be taken and what representations the counsel did or did not make; that the counsel has been informed of the allegations against him and have been given the opportunity to respond or good faith effort to do so is shown; and the alien indicates whether the complaint has been filed and an explanation if no complaint is filed.

Another example is when a timely application was rejected by the USCIS as improperly filed and was returned to applicant for correction and the deficiency was corrected within a reasonable period. Death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family may also be considered.

Financial difficulty, minor medical conditions and circumstances within the applicant’s control are not considered extraordinary. The totality of the circumstances and the “nexus” of the circumstances for failing to timely file as well as the reasonableness of the delay will be considered and weighed in determining whether a favorable exercise of discretion is warranted.

Non-Immigrant Options for Investors

The EB-5 immigrant investor program has captured the attention of so many prospective immigrants because of the low demand for visas under this category relative to the heavily backlogged third preference (EB-3) and, for some countries, the second preference (EB-2) categories.

At present, the EB-5 program presents one of the fastest routes to a green card, be it through the regular program which requires a $1,000,000 direct investment or the regional center or pilot program, in which an indirect investment of $500,000 is usually sufficient.

However, there are avenues that have long existed for other types of investors, particularly those who do not seek permanent resident status in the U.S.

Immigration law and regulations allow treaty traders (E-1) and treaty investors (E-2) to enter the U.S. for specific purposes as non-immigrants. However, one main distinction between them and most non-immigrants is that they can extend their stay almost indefinitely. After an initial period of two years, E-1 traders and E-2 investors can renew their stay every two years for an unlimited number of times if they maintain an intention to depart the U.S. at the expiration or termination of their status.

An E-1 treaty trader is a national of a country with which the U.S. maintains a treaty of commerce and navigation who enters the U.S. solely to engage in international trade. Trade is defined as the existing international exchange of items of trade for consideration between the U.S. and the treaty country, and includes goods, services, international banking, insurance, transportation, tourism, technology and some news-gathering activities.

The trade carried on by the treaty trader must be substantial, meaning that it must be sizable, sufficient to ensure a continuous flow of trade between the two countries. Substantiality cannot be based on a single transaction no matter how monetarily valuable it is. The trade must also be principally between the U.S. and the treaty country, i.e. more than 50% of the total volume of the trade must be between the two countries.

An E-2 treaty investor, on the other hand, is one who is seeking to enter the U.S. to direct and develop a business in which he has invested, or is in the process of actively investing, a substantial amount of capital. Like the E-1 treaty trader, the E-2 treaty investor must also be a national of a treaty country.

For E-2 purposes, substantiality is determined by weighing the amount of funds invested against the total cost of purchasing or establishing the enterprise. It is an amount considered sufficient to ensure the investor’s financial commitment to the enterprise’s success.

A higher proportion of investment is required of small businesses for the investment to be substantial. For instance, while an E-2 investor may be allowed to fund only 10% of an investment worth $10 million, for an investment of less than $100,000, the E-2 investor would normally be required to provide the entire investment.

The investment must be in a bona fide enterprise or one that is a real, active commercial or entrepreneurial undertaking. It may not be idle or passive investment, such as in stocks or undeveloped land. Furthermore, the E-2 investor’s investment cannot be marginal or solely to provide for himself and his family. A marginal enterprise is one that does not have the capacity at present or within five years to generate more than enough income for the investor and his family.

An employee of the E-1 trader and E-2 investor may qualify for the same classification if he is of the same nationality as the treaty employer and if the position is primarily executive or supervisory in character, giving the employee ultimate control and responsibility for the operation of the enterprise. If the employee is employed in another or lower capacity, to be eligible for E-1 or E-2 classification he must have special qualifications or skills essential to the operations of the business.

E-1 traders and E-2 investors, as well as their employees, may be accompanied or followed by their spouses and unmarried children below 21 years old. The dependent family members need not be of the same nationality as the trader, investor or the E-1/E-2 employee.

Time for President Obama to Act on Immigration

One year after the Senate passed the comprehensive immigration reform bill, the chances of immigration reform in Congress, according to immigrant rights activists, has slipped from slim to zero. The slow demise of immigration reform in what seemed to be the best time for it in three decades is owed to the staunch opposition of House Republicans.

When the 2013 legislative year ended, House Speaker John A. Boehner of Ohio said that immigration was top priority in 2014. The GOP even released their blueprint for immigration reform in January which adopted a step-by-step approach and conditioned the legal status being offered to the undocumented on border security and interior enforcement. However, Speaker Boehner later on backpedalled and said that they simply did not trust the President to enforce border security laws.

Despite the growing support and the intensified pressure for immigration reform, House Republicans refused to vote on an immigration bill. Speaker Boehner said that he won’t bring the Senate’s immigration reform bill up for a vote in his chamber. Meantime, the House would not go forward with its own version of the bill.

House Republicans have seemed to be coming up with new excuses not to support immigration reform, from the Affordable Care Act letdown to the most recent surge of young children illegally crossing the southwestern border. Fear from losing conservative votes come midterm election year weighed in even more with Majority Leader Eric Cantor’s loss in his Republican primary election.

The unrelenting stance of House Republicans has led some immigration rights advocates to believe that a shift in control of the House from Republicans to Democrats while holding the Senate and the White House, would be the only solution. According to the executive director of America’s Voice Frank Sharry, “Our biggest mistake was that we believed Republicans wanted to change course after the 2012 election. I don’t believe we will make that mistake again.”

President Obama, on his part, has become fed up with the GOP’s inaction and announced that the time has come for him to act on immigration. The President who earlier postponed releasing the results of the Department of Homeland Security Secretary Jeh Johnson’s review of the deportation policies said that the review will be completed soon. The President said, “If Congress won’t do their job, at least we can do ours.”

Meanwhile, many states are initiating their own solutions for the undocumented. According to Frank Sharry, “A number of states are stepping into the vacuum saying let’s do what we can to make life more bearable for the immigrants living in our communities.”

Recently the New York City Council approved the use of municipal identification cards which will allow undocumented immigrants in the city to open bank accounts, sign apartment leases and gain access to services which require photo ID. With this legislation, New York joins Los Angeles, San Francisco, and New Haven, Connecticut, with large immigrant populations which have established municipal ID programs.

Also, immigrant groups have been pushing earlier this year to allow undocumented immigrants to obtain driver’s license in New York; however, Governor Cuomo said that it might not happen this year. It has been reported though that bills to change New York’s policy have been introduced in the Assembly and the Senate. At present, there are eleven states that have enacted laws providing driver’s license to the undocumented, namely, California, Washington state, New Mexico, Utah, Illinois, Nevada, Maryland, Oregon, Vermont, Connecticut and Colorado.

In addition, more states are allowing undocumented immigrants to pay in-state tuition rates. California and Texas enacted the legislation way back in 2001. Today, eighteen states have enacted laws extending in-state tuition rates to the undocumented.

Meanwhile, Senator Gustavo Rivera (D-New York) also introduced a bill that would grant citizenship to New York’s undocumented immigrants who can establish that they live in the State and paid taxes for the last three years. The bill did not make it in New York’s legislative session, however, according to Senator Rivera, it could serve as a model for other state legislators.

House Republicans agree that the immigration system is broken and needs fixing; however, they refuse to offer a permanent legislative fix. States have already acted. With the President stepping in, it is expected that a solution to immigration may well be underway.

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