Author: silmilawastage

The below note by Attorney Sharif Silmi is adapted from the USCIS Policy Manual instructions to adjudicators regarding the probative value of ‘recommendation letters of support’ in an EB1A petition.

Many petitions to classify a person with extraordinary ability contain recommendation letters of support. Letters of support, while not without weight, should not form the cornerstone of a successful claim for this classification.

Instead, the statements made by the witnesses should be corroborated by documentary evidence in the record. Letters ought to be testimonial in nature, a qualified party
making specific statements based on their authority, personal knowledge and expertise.

The letters should explain in specific terms why the witnesses believe the beneficiary and their contributions to be of great significance and the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification (i.e. exceptional, significant, outstanding, of major significance) or make general and expansive statements regarding the beneficiary and their accomplishments are generally not persuasive.

Letters must be credible. The relationship or affiliation between the beneficiary and the witness is also a factor USCIS will consider when evaluating the weight of witnesses’ statements. It is generally expected that one whose accomplishments have garnered
sustained national or international acclaim would have received recognition for their accomplishments well beyond the circle of his or her personal and professional acquaintances.

In some cases, letters from others in the beneficiary’s field may merely make general assertions about the beneficiary, and at most, indicate that the beneficiary is a competent, respected figure within the field of endeavour. Still, the record lacks sufficient,
concrete evidence supporting such statements. These letters may be considered but do not necessarily show the beneficiary’s claimed extraordinary ability.

Ultimately, a successful EB1A petition will consist of extensive documentary evidence that is contemporary to the applicant’s contributions throughout their career. Support letters can put the contributions in context but are not a substitute for existing documentary evidence.

While you are applying for naturalization in the United States, you are allowed to travel. There are no travel restrictions after completing your Form N-400, also called the Naturalization Application. You are free to go abroad while your application is processed, one of the benefits of legal permanent residence or a green cardholder. However, there are some factors that you might want to take into consideration before traveling to minimize the risk of running into any problems.

Important Information to Keep in Mind before Traveling During the Naturalization Process

1. Naturalization Appointments

During the naturalization process, it is mandatory to attend three crucial appointments. Traveling during this time may slow down your N-400 process timeline because you might have to reschedule these appointments. Within a few weeks of filing your naturalization application, USCIS will schedule a biometrics appointment for you. The naturalization interview, which will take place in a few months, will be the second appointment for most naturalization candidates. Finally, permanent residents are sworn in as citizens of the United States during the oath-taking ceremony. If the appointment letters are ignored, USCIS may deny the N-400, so it is best to make these appointments before planning a trip abroad. Traveling outside the US for a short time after completing Form N-400 is usually not a problem if you maintain your appointments. In addition, if you must travel for an extended period throughout the naturalization process, entrusting all USCIS communications to a trustworthy friend or family member to ensure you are constantly updated while you are away will help you avoid any possible issues.

2. Continuous Residence & Physical Presence requirements

It would help if you met continuous residency and physical presence criteria while traveling overseas. The length of your trip is another element to consider, particularly if you are traveling outside the country. After completing Form N-400, the continuous residency and physical presence criteria for naturalization remain in effect. As a result, you must not go on a long trip (not more than 180 days), and you must always keep track of your time spent outside the country. If you are outside the US for six months or longer, USCIS will assume you’ve broken the continuous residency requirement. Denial of your N-400 may occur if an interruption in continuous residence is established.

Individuals who have already spent a significant amount of time outside the United States within their statutory period should avoid going too far. The criteria for being eligible for people applying based on five years of permanent residence is thirty months of physical presence in the United States. Travelling will continue to count against the physical presence criterion during the naturalization process.

Takeaway

To conclude, you are free to travel outside the United States after filing for naturalization. However, keep in mind that Permanent residents will be subject to inspection and will be required to show legitimate proof of permanent residency (usually a green card) when reentering the United States. Furthermore, all applicants should be aware of travel’s impact on their application. Before making travel plans, it is advisable to first consult with a competent immigration lawyer.

Have you been living in the U.S. on a temporary visa or without status and seeking to make your stay permanent? You will need to undergo the adjustment of status (AOS) process to get your permanent resident card. Here is an overview of the steps to adjustment of status.

1. Determine Your Eligibility for a Green Card

There are different categories of green card, and each one under its own eligibility criteria. One can think of them as falling into one of three types; there are family-based green cards, employment-based green cards, and green card in some special categories of humanitarian based green cards for refugees, asylees, victims of abuse and other special cases. The category you are applying for will determine your eligibility requirements. You can check your eligibility requirements here.

2. Filing of Immigrant Petition

Most green card categories require someone to file your immigrant petition with the United States Citizenship and Immigration Services (USCIS) on your behalf, while some allow you to file the petition yourself. This is dependent on the eligibility requirements for the category you are applying for. Whether you are being sponsored by someone else or you are self-sponsoring your petition, one of the following immigrant petition forms must be submitted to USCIS, depending on the category:

1. Family-Based Petition: Form I-130
2. Employment-Based Petition: Form I-140
3. Refugee/Asylee Petition: Form I-730
4. Application for Asylum and for Withholding Removal: Form I-589
5. Immigrant Entrepreneur Petition: Form I-526
6. Petition for U Nonimmigrant Status: Form I-918
7. Petition for Amerasian, Widow(er), or Special Immigrant: Form I-360
8. Petition for Qualifying Family Member of a U-1 Nonimmigrant: Form I-929

3. Check Immigrant Visa Availability

After submitting their immigrant petition, most green card categories require applicants to queue on the waiting line for the availability of an immigrant visa. For a few categories, however, there is always availability of visas. For instance, if your adjustment of status is sponsored by a lawful permanent resident family member, particularly someone other than a spouse, you will most likely have to queue on the waiting line due to the limited number of visas in that category. On the other hand, if you an immediate relative (child or spouse) of a U.S. citizen, you would not have to wait as with sponsorship through an immediate family relative adjustment of status may take place immediately.

4. File Form I-485

All adjustment of status applicants must file Form I-485 petition during their application process. Unlike the immigrant petition that mostly requires having someone file on your behalf, Form I-485, Adjustment of Status Petition must be submitted by you (the applicant/beneficiary). If you are applying as an immediate family relative of a U.S. citizen, you can submit your I-485 petition concurrently (at the same time) with the immigrant petition or at any time thereafter.However, if there is a limited number of visas in your own category, you must wait until an immigrant visa is available for you before you can submit your Form I-485.

5. Attend Adjustment of Status Appointments and Interview

After receiving the Form I-485 petition, USCIS will send the applicant a mail containing information on how to complete your biometrics. They will also be scheduled for an interview (if applicable). Ensure you attend the appointments and complete all the required procedures.

6. Receive a Decision and Get Your Green Card

USCIS has the prerogative to review an adjustment of status application and after that, decide whether to approve or deny it. You will receive the decision on your petition after completing all the above processes. If the adjustment of status application is approved, the applicant will receive their green card. This is also known as Permanent Resident Card, which will be received little later after the decision.

Presently, the average naturalization (citizenship) process can take 12 to 15 months; some USCIS field offices take even longer, depending on volume and staffing levels.

In the last few years, there has been a significant spike in the number of people applying for naturalization. We often hear what will happen to their Green Card if their citizenship application is denied.

Why did my citizenship application get denied, and what does that mean for my green card?

Below are some of the common reasons behind why a citizenship application may get denied:

• Error or mistruth in the citizenship application
• Negligence towards tax payment
• Below average performs in the citizenship interview
• Failure in the Civic test
• Poor command in the English Language
• Expired green card
• Negligence towards paying child support
• Having a criminal record
• The applicant does not fit the edibility criteria.

Not all of these cases will mean that you will lose your green card or your permanent residency, and many applicants get second chances. For example, failing the English proficiency test will not place your Green Card at risk. However, other more severe reasons related to citizenship denial can threaten your permanent resident status. For example, maybe you have an infectious disease that you did not mention while applying. In this case, one was involved in significant criminal activity or acquired permanent residency through fraudulent activity.

Therefore, we can’t stress enough how important it is for the applicant to be honest while filling out their application forms because USCIS will review your file to look for information inconsistent with your immigration file. If USCIS finds any such information about you, then your citizenship application may be denied, and your green card along with lawful permanent residency status can be at risk.

What can I do to minimize the risk of my naturalization application getting denied?

To avoid denial of the application, citizenship applicants need to carry out research. If you are worried about potential inconsistencies, get in front of the issue through consultation with an experienced attorney. After applying (Form N-400), start taking the necessary steps to prepare for the interview. An interviewer will be looking for your ability to comprehend and communicate in English. If you are older than 55 years and have resided in the United States for more than 15 years, you are not subject to the English proficiency requirement. If you think your English requires some improvement, take an English language learning class before the interview. Do not be nervous and stay calm during the interview. Be truthful and ensure your responses in the interview match the written responses in the N-400 form!

Options for Canadians to immigrate to or live and work in the United States vary depending on why one is seeking to become a U.S. resident. Some of the most common reasons Canadians move to the United States include education, employment, business opportunities, and the more favorable tax regime in many U.S. jurisdictions, including Puerto Rico.

Employment

Individuals interested in moving to the United States to look for new career opportunities should know that to be eligible, they must be sponsored by an employer or qualify for a National Interest Waiver. Below are a few categories and visa options for individuals interested in acquiring permanent residence in the United States based on their employment skills.

EB1 Category: This category is for (A) individuals with extraordinary skills and abilities in arts, science, education, athletics, or business; (B) tenure track professors and researchers; (C) multinational executives and managers.
EB2 Category: This category is for the advanced degree professionals and extra skilled employees in business, science, or arts. The self-petition option under a National Interest Waiver does not require a US employer sponsor or job offer.
EB3 Category: This field is for skilled workers, professionals, and ineligible workers for the EB1-EB2 categories (usually holding a bachelor’s degree).

TN NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created unique economic and trade relationships for the United States, Canada, and Mexico. The TN nonimmigrant classification permits qualified Canadian citizens to seek temporary entry into the United States to engage in business activities at a professional level.
Among the types of professionals eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:
– You are a citizen of Canada;
– Your profession qualifies under regulations;
– The position in the United States requires a NAFTA professional;
– You have a prearranged full-time or part-time job with a U.S. employer; and
– You have the qualifications to practice in the profession in question.

Investment

E2 Treaty Investment Visa
E2 Visa grants a business investor to enter the United States for the sole purpose of setting up a business. However, this visa does not give you permanent residency, but one advantage of the E2 visa is that it can be continuously extended as long as the business is viable. The investor can either invest in a new or existing company.

EB-5 Visa
The EB-5 visa provides a method of obtaining a green card for foreign nationals who invest in a “new commercial enterprise” in the United States. The EB-5 program “affords foreign nationals and their spouses and unmarried children under age 21 the ability to obtain a U.S. visa based solely upon a minimum investment in a for-profit enterprise that creates or retains a specified number of jobs”. To obtain the visa, individuals must invest $1,000,000 or $1,800,000 after Nov 21, 2019 (or at least $500,000 or $900,000 after November 21, 2019, in a Targeted Employment Area – high unemployment or rural area), creating or preserving at least ten jobs for U.S. workers excluding the investor and their immediate family.

Education

The United States is known for having world-class educational institutions and if you are interested in immigrating to the U.S. for education, then below are two of the visa options one may pursue:

F-1 Student Visa
The F-1 Student visa is ideal for individuals planning to enroll and study in institutions such as elementary or academic high schools, universities, seminaries, accredited colleges, conservatories, or language training programs. Eligibility criteria for the F-1 student Visa are that the program you are enrolled in must culminate in receiving a degree, diploma, or certificate. The Institute must have authorization from the U.S. government to enroll international students.

M-1 Student Visa
The M-1 visa is issued for students planning to attend vocational schools or other non-academic programs. Also, M-1 Visa holders are not allowed to work throughout their education.
Note that if, after completing your graduation, you can remain in the United States to complete “Practical Training” (OPT) and can then remain permanently through an employment-based visa.

Marriage

Below are immigration options for individuals engaged/married to U.S. Citizens and are planning to settle down in the United States.

K-1 fiancé Visa
Individuals who plan to get married in the United States should apply for a K-1 fiancé visa. The K-1 visa will allow you to enter the U.S. for 90 days’ time period and get married. If you get married within 90 days, you will be eligible to apply for lawful permanent residence in the United States.

Immigrant Visa for a Spouse of a US Citizen (IR/CR1 VISA)
The IR1/CR1 Visa is a Family-based green card ideal for Canadians married to U.S. citizens. It permits a U.S. citizen’s spouse to live with their partner in the United States as a permanent resident.

This article addresses some of the latest developments that concern individuals who have lived through a decade-long immigration backlog, especially for individuals born in India and China.

The US immigration system in terms of the employment-based category works by focusing the immigration priority on chargeability, determined by the country of birth. Individuals born in larger countries are subject to a cap limit on the number of visas issued for individuals from that country. Presently the cap is 7.5 percent. This means that one country may only take up 7.5 percent of the visas available. Due to a large number of skilled workers from India and China, you have backlogs in employment-based categories.

Let’s talk about whether this proposed legislation will solve this issue and what this means for you and your family. Within the US, there are two legislative bodies,  the House of Representatives and the Senate. For a proposed bill to become law, both legislative bodies must approve it before being sent to the President; under current rules; the 100 member Senate requires a supermajority, 60 votes to pass a bill.

Zoe Lofgren, along with Republican John Curtis, recently introduced the “Eagle Act.” Unfortunately, immigration laws are challenging to pass, and to become law, any bill must gain the approval of the House of Representatives and receive support from democratic and republican senators. Thus while the “Eagle Act” (proposes an effectively phased-in elimination of country quotas) is being introduced, for it to become a law, it will need at least ten Republican senators to come forward and support the bill without coming up with a carve-out for China. This is because as soon as they craft out restrictions on Chinese immigration, you are going to have a considerable pushback from the House. This is due to historical precedents of discrimination toward Chinese in the United States as there used to be a racist law called the “China Exclusion Act” which is now criticized and considered a mistake.

As of now, 75% of the current employment-based immigration backlog comprises Indian-born applicants. In the current backlog situation, many Indian workers cannot get permanent residence and a green card within their lifetime. With the Eagle Act, per-country caps on employment-based immigration would be effectively removed. Countries with the highest number of applicants, i.e., India and China, will receive the maximum under the law for the first three years of 30% of all employment petitions.

A concerning issue that may stall the proposed legislation is the rising level of anti-China sentiment among lawmakers. This may result in a poison pill within the legislation, where some of the more nationalist Republicans senators, might want to add an amendment in the bill, which may then receive disapproval from the democratic-controlled House of Representatives. Thus, this bill becoming law will likely depend on the ability of lawmakers to craft it in a way that would avoid adding controversial initiatives, such as anti-China language, into the bill.

While introducing this bill early in the legislative term is encouraging, it still has a long march before it becomes law. Even if the bill passes this year, one will be looking at a two-year process for the account to be implemented to the degree that it has practical benefits. Seeking advice from a result-oriented immigration law firm such as Silmi Law can be favorable for you and your family. Silmi Law will help make sure that you are headed in the right direction and considering all available options.

here are two branches of Immigration law that we deal with regularly, one being family-based Immigration whereas the other is employment-based. However, today our focus is on employment-based Immigration and some recent developments relating to self-petition in the employment-based categories. On increasing demand from people willing to start businesses in the US, we are going to discuss one area that has gained popularity and that the government has shown a need for in the US.  The popular area of interest is semiconductor manufacturing as the US is currently relying on foreign manufacturing of semiconductors. Individuals with knowledge, experience, and expertise in the semiconductor field are eligible for self-petition. The two self-petition categories under the US Immigration law are the EB2 employment-based second category ‘The national Interest waiver’ and the first category EB1A for Individuals of extraordinary ability.

The requirements for EB2 national interest Waiver are that you are required to have a master’s degree along with any major contribution of significance to your field. The qualifications for EB1A require business-related contributions of major significance along with proof of originality and significance to the field of endeavor. Having Publications helps, however, it is not necessary.  Semiconductor manufacturing is the most in-demand field in the US at this moment and if you are qualified to perform any role in the semiconductor manufacturing industry you are very likely to see a positive response in your petition. Moreover, when you submit a petition either in EB1A or EB2, describing and narrowing down your field of endeavor can be beneficial. Moreover, if you belong from any niche relating to Semiconductor manufacturing by narrowing down your field you will be demonstrating to the government that you specialize in an area that is of national interest making your petition stand out and get accepted.

Another thing to keep in mind is that your ability to migrate to the US is impacted by your country of birth, regardless of citizenship. If you are born in India or China, even if you are a citizen of Canada you are subject to a country cap based on country of birth. Thus, if you are interested in migrating to the US swiftly you will have to file a petition in the EB1 category. Also, your spouse’s country of birth will impact what petition you should file. Thus, for people born outside India or China, it is advised to file an EB2 national interest waiver as that is a less complicated requirement to meet. Moreover, when deciding which petition to file it is important to keep in mind that at this moment EB1 ability cases can file premium processing which comes at the cost of two thousand five hundred dollars that is paid to the government in exchange for the decision of your case in 15 business days which without premium processing would take about a year. In regards to EB2 national interest, the waiver will take around 8 months to process and there is no option to file premium processing.

The E-2 treaty investor visa is a highly advantageous visa that foreign entrepreneurs can use to live and operate their business in the United States. Like most US visas, the E-2 visa involves a series of processes and requirements an applicant must meet. However, with the right information and guidance, you can acquire the visa on time. Here we look at the requirements and benefits of an E-2 visa.

E-2 Visa Requirements

1.National of a Treaty Country

The first requirement is that you must be a national of a country that maintains treaties of commerce and navigation with the United States. There is a long list of countries having this treaty with the United States. Before proceeding with your E-2 visa process, the first thing is to check here to see if your country is one of the treaty countries.

2. Substantial Investment

After confirming your eligibility based on your nationality, the next E-2 visa requirement is to ensure that your intended investment is a “substantial investment.” This requirement can be somewhat murky for many applicants, as there’s no specific benchmark for it. Unlike the EB-5 visa, with its minimum investment amounts clearly stated as $900,000 or $1.8 million, the E-2 visa has no specific investment amount. The rule only states that the investment must be sufficient to ensure the successful operation of the enterprise. So, this means the capital must be relative to the kind of business enterprise you will undertake.

It is viewed on a case-by-case basis. This means some applicants may qualify with some thousands of dollars. In contrast, others might need hundreds of thousands of dollars, depending on the scale of enterprise they are venturing into. For instance, an applicant seeking to acquire an E-2 visa based on his or her investment in a restaurant may not need up to $100,000. We have successfully obtained E-2 visas for many clients with as low as 40,000$ investment amounts or even lower within our practice. Meeting the “substantial investment” amount isn’t really about how much you are investing; it’s more about how you can convincingly present your case. This is why the importance of working with an experienced attorney cannot be overemphasized.

3. The Investment Amount Must Be Irrevocably Committed

Another requirement is that the investment must put your capital at risk, and it is irrevocably committed to the enterprise. And this must happen to acquire the visa. If, for instance, you are investing in an existing business, your capital must have been committed to the business before you’d be issued a visa. Simply depositing the fund in a business account will not qualify for this requirement. Though this may somehow appear risky to many applicants, there is a safe way around it. To ensure the safety of the fund in case of any unforeseen event, we advise our clients to put the fund in an escrow account while the investment and visa applications are being processed. An escrow account is a safe account belonging to a third party, such as an attorney. With an escrow account, if you get the visa, the fund would be transferred into the business, and if you don’t, the fund can be safely returned to you.

4. The Business Must Be a Real Operating Enterprise

It is also crucial that the business enterprise is a real operating business. It must be a business establishment that engages with people in the United States. Speculative, idle, fictional, or virtual investment does not qualify.  Also, you must demonstrate that you’re entering the United States to develop and direct the business. In other words, you are going to be active in running the business. This requirement is an integral part of the E-2 visa interview. The consulate officer will ask questions that will help determine whether you have the expertise to run the intended enterprise. This is one of the areas we help our clients by preparing them for the interview so they’d be able to convince the consular officer and acquire the visa without any delay.

Benefits of E-2 Visa

The E-2 visa is highly beneficial because it offers many advantages that many other US visas don’t have. Some of the benefits are:

1. Visa and Work Authorization for Spouse

With an E-2 visa, your spouse and children will become eligible to live in the United States with you. Your spouse will also be eligible to apply for work authorization or work permit, which will allow him or her to work anywhere in the United States. This can be an added advantage to the family income. Your children will also be able to school in the US to any level as long as you continue running the business and maintaining your status requirements.

2. Unlimited Number of Renewal

Another beauty of the EB-2 visa is that you can continuously renew it as long as you keep operating the business enterprise. With this, you can continue living in the United States for as long as you want, just as your spouse and children will keep working and schooling.