Victoria Donoghue Immigration Law

The Intersection of Music and Immigration

2012-02-16T05:56:00.000-08:00

So is work in Music in the national interest? In the eyes of USCIS, it may be. In the not-too-distant past, the Vermont Service Center granted a national interest waiver petition for a clarinetist with a Maters Degree in Music and six years of experience as a performer of classical and jazz music and as a teacher of music workshops and programs. The waiver was based on the applicant’s dedicated promotion and performance of works by contemporary American composers, including some written especially for him, and on his documented commitment to making serious music more accessible to low-income urban and rural communities.

Are You An Artist Or Performer?

2012-01-30T11:03:00.001-08:00

Foreign nationals who have demonstrated extraordinary ability in the sciences, arts, education, business or athletics may be able to receive an O visa to work in their area of expertise. By way of example, an art school graduate with an exceptional portfolio might be eligible for an O visa. The period of stay for an O visa is 3 years and incremental extensions are available. P visas are available for performing artists and athletes. An example might include a Salsa Instructor for South America coming to the U.S. to perform in a series of Salsa related events put on by a dance company. These visas require applications to USCIS.

Huge Advances For EB2 In February 2012

2012-01-09T13:35:00.000-08:00

The Visa Bulletin released by the Department of State for February 2012 shows another huge jump forward for retrogressed EB-2 (Employment-Based second preference) cases. Visas are now available for cases filed on or before January 1, 2010 for Indian and Chinese Nationals. This represents a one year leap forward as compared to the January 2012 visa bulletin.

Help Coming For Talented Immigrant Entrepreneurs?

2012-01-03T12:20:00.000-08:00

The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization focused on trade, immigration and related issues, recently published a report on immigrant entrepreneurs. The report noted that in recent years, start-up businesses, those in their first three years of operation, have contributed the most to job growth in the U.S. In fact, older firms (6-10 years of operation), created only one-tenths of the number of jobs created by the start-ups. And recent studies have shown that “immigrants were more than twice as likely to start businesses each month in 2010 than were native born.”

Notwithstanding the fact that, without start-ups, there would be almost no job growth in the U.S. economy, and the fact that immigrants are so much more likely to start a business, U.S. immigration law makes it very difficult for foreign entrepreneurs to stay in the U.S. One option, an E visa, requires a minimum investment of $500,000 in an existing business (the average investment for a start-up is $31,000). Another option, an H-1B visa, is almost impossible for an entrepreneur to get.

Recently, a number of new bills have been introduced that would establish entrepreneur visas. These bills would place less emphasis on the amount of capital a foreign national invests and more on the talent the new business owner brings to the undertaking.

Huge Step Forward For EB-2 Filers

2011-12-12T10:39:00.000-08:00

In the recently published U.S. Department of State Visa Bulletin for January 2012, the EB-2 priority dates for India and China have moved significantly to January 01, 2009 from March 15, 2008 in the December 2011Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1.

Legislative Help For Highly Educated Foreign Nationals?

2011-12-08T09:01:00.000-08:00

On September 22, 2011, Representative Chaffetz (R-UT) introduced H.R. 3012, or The Fairness for High-Skilled Immigrants Act. The act would eliminate the employment-based per-country caps entirely. This would constitute a significant improvement over the current situation. The per-country caps have resulted in lengthy delays in finally getting employment-based green cards (up to 9 years in some cases). On November 29, 2011, the House passed H.R. 3012. It now goes to the Senate for consideration.

H-1B Cap Reached on November 22, 2011

2011-11-30T08:07:00.000-08:00

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2012. USCIS is notifying the public that yesterday, Nov. 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012.

Government Moves to Encourage Highly Skilled International Workers

2011-08-26T08:45:00.000-07:00

The U.S. has a long history of welcoming highly skilled workers. Last week, Sect Napolitano outlined a new policy intended to make it easier for highly skilled immigrants to start and grow companies and create jobs. The policy includes clarifying that immigrant entrepreneurs may obtain an EB-2 immigrant visa and may qualify for a National Interest Waiver, expanding Premium Processing services, and clarifying that a sole employee-entrepreneur can establish a valid employer-employee relationship for H-1B purposes.

Moving? Foreign Nationals Must Notify CIS

2011-08-11T14:39:00.000-07:00

Every foreign national in the United States, whether in nonimmigrant or immigrant status (green card), has a legal obligation to update his/her address with USCIS each and every time that s/he moves. In the case of nonimmigrants with pending petitions, failure to update an address could result in CIS sending a Request For Further Evidence to the wrong address. Failing to respond to a Request for Further Evidence, in turn, could lead to the denial of the benefit. If a green card holder fails to update his/her address, s/he may be questioned about the omission at a naturalization interview.

Changes to Visa Validity for Iranian Students

2011-05-24T12:32:00.000-07:00

For the past several years, Iranian students in F and J status were only able to get single-entry visas. As of May 20, 2011, qualified Iranian applicants for non-sensitive, non-technical fields of study and research will be eligible to receive two year, multiple entry visas. This will make travel significantly easier for Iranian students.

List Of STEM Programs Eligible For OPT Extension Is Expanded

2011-05-16T12:32:00.000-07:00

Optional Practical Training (OPT) is a one year period of free market employment available to international students after graduation. For STEM (Science, Technology, Engineering, and Math) graduates, the period of OPT can be extended by an additional 17 months (for a total of 29 months). The only problem with this was that the list of STEM fields of study was specifically enumerated, and somewhat narrow. Last week, ICE (Immigration Customs & Enforcement) expanded the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science. By taking this action, the Obama Administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts.

BALCA Decision on University Recruitment

2011-04-21T06:49:00.001-07:00

A BALCA decision handed down earlier this week finally answered a long standing question regarding PERM and the recruitment standard to be used for college and university professors. In a normal PERM case (not involving a university teaching position), the employer must demonstrate that it recruited for the position and could not find "minimally qualified" U.S. workers. Under a Special Handling case (applicable to college and university professors), the recruitment requirements are different and the applicable standard is different. The employer only needs to show there are no US workers who are at least equally qualified with the alien.

However, Special Handling applications must be made within 18 months after the selection is made. After 18 months, a college or university must use the normal PERM recruitment procedures. The unanswered question has been: Can a college or university that has used the normal recruitment procedures avail itself of the Special Handling "at least at least equally qualified with the alien" standard?

This week's BALCA decision put an end to the uncertainty. On April 18, 2011, BALCA held that in cases involving a college or university teaching position, the employer may select the alien over less qualified U.S. workers regardless of whether the employer uses the basic recruitment process or the Special Handling recruitment process.

USCIS To Issue Single Card For EAD And Advanced Parole

2011-02-15T13:42:00.000-08:00

Over the weekend, USCIS announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an application to Register Permanent Residence or Adjust Status with Form I-485. Up until now, CIS has issued cards for employment authorization and a separate piece of paper permitting travel. The new single card will look like the current employment authorization card. This action was taken for security reasons and because the new cards will be more durable.

Adjustment After Entering with a False Identity

2011-02-13T14:51:00.000-08:00

In 1988 Pedro and his wife Mari entered the U.S. using the passports and visas of close friends. A year later, they sent for their 8 year old son, Luis. Luis entered as an unaccompanied minor, also with the passport and visa of another individual. Luis remained in the US and is now 30 years old and engaged to a U.S. citizen. Neither Luis nor his parents have ever attempted to file for a green card. Is there any hope for Luis in terms of immigration? Will he be able to file an I-130 and I-485 based on his marriage to a U.S. citizen?

While the answer to the question has been in a legal state of flux, it is now clear that there is hope. The controlling decision on this matter, found in Matter of Areguillin, 17 I & N Dec. 308 (BIA 1980), and recently reaffirmed in Matter of Quilantan, Int. Dec. 3688, 25 I & N Dec. 285 (BIA 2010), held that where an applicant provides sufficient credible evidence that s/he presented his or herself for inspection at the border, and did not make a false claim to U.S. citizenship, s/he was lawfully admitted when the inspecting officer makes the determination that s/he is not inadmissible and permits him or her to pass in to the U.S.

Accordingly, even though the passport and visa used by Luis bore a false name, under precedent, the use of the passport and visa, sufficiently established an inspection and admission for purposes of the INA. For this reason, once he marries his U.S. citizen fiancé, he will be permitted to adjust his status.

Family-Sponsored Visa Categories Massively Retrogress

2010-12-16T13:35:00.000-08:00

The January 2011 Visa Bulletin was issued this week showing significantly retrogressed cut-off dates for family-sponsored preference categories. By way of example, the family sponsored preference 2A category (spouse and children of Lawful Permanent Residents) retrogressed from August 1, 2010 to January 1, 2008. This development came not even a week after the Dream Act was tabled by the lawmakers. This was not a banner week for immigrants.

DREAM Act Much Closer to Reality

2010-12-09T10:26:00.000-08:00

Last night the Dream Act finally passed in the House by a vote of 216 to 198. The Senate will vote on the law today. If the Dream Act becomes law, it will provide a way for certain young undocumented aliens to become lawful permanent residients. They will be eligible if they were brought to the US as children, complete high school, demonstrate good moral character, and complete at least two years of higher education or serve for at least two years in the US military. My article in ILW.com includes a story of a young person who will benefit. Please call your Senator and urge passage ASAP.

Dream Act Now

2010-12-03T20:10:00.000-08:00

This week one of my students at the CUNY SPS immigration law program made the below comment on the website. I encourage anyone interested in the Dream Act to contact their congressional representive; it's critical to the passage of this act:

Late last night, Majority Leader Reid (D-NV) filed a new version of the DREAM Act (S. 3992) with the aim of attracting broader support for DREAM to get the requisite 60 votes to pass the Senate. With the filing of this new bill, the anticipated date for bringing DREAM to a vote will be delayed. The earliest Reid could file a cloture motion on the new bill would be this coming Thursday. After waiting out the requisite 30 hours post-cloture, it could "ripen" over the weekend, and effectively come up for a vote on Monday at the earliest. The new version addresses many of the concerns raised by Republicans and tightens the restrictions on eligibility in several respects. BUT, in order for this to happen, we must keep the pressure on Members of Congress. It's more important than ever that you take action TODAY by writing and calling your member of Congress and urging them to support this common-sense and urgently needed immigration measure.

FY 2011 H-1B Cap Count Update

2010-11-19T17:08:00.000-08:00

As of November 12, 2010, approximately 47,800 H-1B cap-subject petitions were received by USCIS. Additional, approximately 17,400 advanced degree petitions were receipted. With only 6 weeks remaining in 2010, it seems unlikely that the cap will be exhausted.

Redesigned Naturalization Certificate

2010-10-26T11:57:00.000-07:00

Over the years, CIS has redesigned Lawful Permanent Resident cards on several occassions, with the newest version including the most current security features available. CIS has just done the same for the naturalization certificate. The new certificate of naturalization also has security features that will reduce fraud. It will include the new citizen's digitized photo and signature embedded into the document, and will feature a color-shifting ink pattern that is difficult to reproduce.

All previously issued Certificates of Naturalization shall remain valid.

Facebook, Twitter, and USCIS

2010-10-19T10:28:00.000-07:00

A CIS internal memo has be circulating which instucts DHS Fraud Detection officers on how to use social networking websites, such as Facebook, MySpace and Twitter, in order to detect fraud in immigration cases. According to the memo, these sites prove "an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioner who are suspected of fraudulent activities." Noting that people generally speak honestly on these sites, the memo states they give FDNS "an opportunity to reveal fraud by browsing these sites to see if petitioners and beneficiaries are in a valid relationship or are attempting to deceive CIS about their relationship." Summing up, the memo states that "using MySpace and other like sites is akin to doing an unabbounced cyber 'site-visit' on petitioners and beneficiaries."

FY2011 H-1B Cap Count

2010-10-19T08:32:00.000-07:00

As of 10/15/2010, approximately 42,800 H-1B petitions were receipted by USCIS. CIS also receipted 15,700 petitions from foreign nationals with advanced degrees. Accordingly, with only 2.5 months remaining in the year, approximately 1/3 of the visa numbers remain available. No one knows what will happen if the year closes with visa numbers still available. The government will have to decide whether to apply a "use it or lose it" strategy (meaning the visas will be gone), or roll the unused visas into the next fiscal year.

National Interest Waivers Provide Individuals with Permanent Status

2010-10-08T13:39:00.000-07:00

A foreign national may apply for lawful permanent residence status (green card), and seek a waiver of the job offer and labor certification requirements, by establishing that his or her admission to permanent residence would be in the National Interest. The applicant must establish that his/her proposed services will be in an area of substantial intrinsic merit and will have a national benefit, and that the alien has some track record of success in his or her field.

In deciding whether the proposed work will be in an area of substantial intrinsic merit, factors that have been considered in successful cases include, whether the work will improve the U.S. economy, improve healthcare, or improve the U.S. environment and lead to more productive use of the national resources.

In addition to requiring the showing of a benefit that is national in scope, national interest cases require that the emphasis rest with the overall value and potential of the particular beneficiary’s individual contribution to the United States. Many of the National Interest Waivers that have been approved were supported by affidavits from well-known, distinguished and influential people or organizations. Strong National Interest Waiver cases also document past achievements. They may include proof, for example, that the foreign national has already created jobs, has turned around a business, has created an increase in exports, has published articles in scholarly journals, or has made presentations at symposia.

By way of example, a Researcher Professional working on potential drug therapy for autism gain a national interest waiver. The researcher had been part of a team of researchers who had investigating a particular drug for several years. In addition to performing research, the applicant was a medical doctor and would be instrumental when it came to moving the research to the clinical stage. She had also be the first author on 3 articles that the research group had published.

New Naturalization Fact Sheet Released

2010-10-01T09:02:00.000-07:00

This week CIS released a new naturalization fact sheet. The document if filled with interesting statistics. Did you know, for example, that the top countries of origin for naturalization are Mexico, India, Philippines, China and Vietnam? Or that the leading metropoliltan area of residence for naturalized citizens is the New York-New Jersey metropolitan area? It's an interesting read.

USCIS Fee Increase Coming Soon

2010-09-24T08:46:00.000-07:00

Yesterday USCIS announced a final rule raising the filing fees for most immigration benefits. The final rule, which will go into effect on November 23, 2010, will increase by about 10%. By way of example, the I-129 used for H-1B visas will increase from $320 to $325 and the premium processing fee will increase from $1,000 to $1,225. The rule does not increase the fee for naturalization applications.

FY 2011 H-1B Cap Count Tracks the Sluggish Economy

2010-09-22T11:14:00.000-07:00

As of 9/17/2010, approximately 38,300 H-1B cap-subject petitions were receipted, and 14,000 H-1B petitions for aliens with advanced degrees were receipted. This slow creep toward the cap stands in stark contrast to FY 2008 and 2007 when the H-1Bs were gone within 24 hours of the April 1 opening date.