New affidavit of support regulations are coming soon and it's not good

A proposed regulation to change the standard of the affidavit of support requirements for immigrants may be published and become effective soon.

Before the final version becomes effective, the State Department started to tighten the rules in 2018.

The department reduced the weight of an affidavit of support that many U.S. sponsors must provide to demonstrate that an applicant will not become a taxpayer burden. The new guidance stated that the affidavit should be considered only one factor in a broader test to determine whether a person might use cash assistance or require long-term, institutionalized care.

An affidavit of support previously would have been sufficient to override most public charge determinations.

Following the revision, the number of visa denials based on public charge grounds spiked.

The State Department rejected 12,973 immigrant visa applications over public charge concerns in fiscal 2018. The department turned down just 3,209 applications on those grounds in fiscal 2017 and a mere 1,033 in fiscal 2016.

The 2018 changes to the Foreign Affairs Manual also provided more detailed instructions for how consular officers should consider an applicant’s age, health, family status, financial resources, education, and skills when making a public charge determination.

It is expected that once the final rules become effective, denials of immigrant visa applicants will increase significantly.

USCIS continues to delay decisions on varieties of cases and mandamus is the best way to address that problem

We have seen the increase of unreasonable delays of many cases by the USCIS.  It ranges from asylum, employment authorization, N-400 naturalization before or after the interview, and I-485 adjustment of status.

We have filed more than 600 mandamus actions in federal courts to compel the USCIS or in some cases the FBI to do their job.

Once such recent case involves an asylee who filed her I-485 for green card in February 2013 by another lawyer.  Over the years, her lawyer just told her to wait.  One of the reason for the delay, we later discovered, is that her previous lawyer's assistant forged a birth certificate for client.  US Consulate discovered that fake documents and return her approved I-730 to the USCIS for revocation.  The USCIS did in fact revoked her I-730 therefore her child could not join her in the United States.

This client first consulted me about 2 years ago but she decided at that time to continue to wait, hoping a miracle would happen.

After two years waiting, she finally decided to hire us to sue the government.

Within about 35 days, USCIS requested her for another interview.

Then USCIS requested DNA be done to establish the biological relationship of the client and her child.

In less than a month, DNA test was complete and report issued.

I expect a decision from the USCIS soon.

All thanks to the mandamus action in federal court.

In another EB5 application case, after we sued the USCIS, RFE was issued. We can reply to the RFE and resolve the issues.  Without the lawsuit, who know how long we will have to wait for a decision from the USCIS.

Last year, we filed several mandamus actions in court to compel the US Consulates in China to issue visas.  All resolved in our clients' favor in about 2-3 months.

Do you have long delayed case that you want to resolve soon?  Please contact us for consultation(website www.lawbw.com; or email justin@lawbw.com).

Expedited removal may affect thousands of undocumented aliens in the US

Starting from July 23, 2019, expedited removal may be applied to individuals who are undocumented, or who have committed fraud or misrepresentation, and who are encountered within the entire United States and who have not been physically present in the United States for two years prior to apprehension. 

Under the new policy, the immigration officer making the decision virtually has unchecked authority. When an immigration official encounters someone they believe may be subject to expedited removal, the burden of proof is on the individual to prove otherwise. This means that an individual believed to be subject to expedited removal will have the burden of proving to an immigration official that they have been physically present in the United States for two or more years or that they were legally admitted or paroled into the United States. 

If you were legally admitted to the US but you are now out of status you do not need to worry about this new measure.   

EB5 investors visa program changes on November 21, 2019

USCIS will publish final rules tomorrow(July 24, 2019) changing the EB5 program as we know it. 

Some of the key developments under the final rule include:

· Raising the minimum investment amounts ($900,000 for TEA and $1.8 million for non-TEA);

· Revising the standards for certain targeted employment area (TEA) designations;

· Giving USCIS responsibility for directly managing TEA designations;

· Clarifying USCIS procedures for the removal of conditions on permanent residence; and

· Allowing EB-5 petitioners to retain their priority date under certain circumstances.

Anyone who wants to participate in this program should act now in order to file the petition before November 21, 2019.

New USCIS policies will significantly affect your immigration status

USCIS recently issued two new policies that will significantly affect many people seeking immigrant benefits in the United States.

The first such policy directs the USCIS offers to refer the applicants to removal proceedings if their applications are denied and if they are no longer in legal status.  For example, if you file for B2 extension and when the USCIS denies your application, your 6 month stay expired, you may be put in removal proceedings(in this case if you just leave the US you may be ordered removal at your master hearing in absentia).  Another example is if you file H-1 extension and if your petition is denied and your current H-1 expired, you may be put in removal proceedings.

The second new policy involves the denial of applications without issuing request for evidence (RFE) or notice of intent to deny(NOID).   Now USCIS may deny your application without first asking for more evidence if it determined you did not provide basic evidence or required form.  If you have a deadline to submit an application, the denial of your application will be devastating as you may have missed the deadline and you cannot file it again.

All these changes have raised the stake for anyone who file applications/petitions with the USCIS.  You may have only one chance to get things right.  If you do it yourself, or hire inexperienced lawyer or immigrant consultant, you may fall into a deep hole you cannot dig yourself out.  

Attorney General decides Immigration Judges and BIA do not have authority to administratively close removal cases

In Matter of Castro-Tum, Attorney General on May 17, 2018 decided that immigration court and the Board of Immigration Appeals do not have general authority to administratively close removal cases.  The Attorney General asks the government to file motions to recalendar all previously closed cases.

As we know, immigration court used to close many cases in the past to save its resources for more pressing cases.  Many clients had their cases closed and they just wait for other options before they seek to recanlander their cases.

With this new decision, once the government has resources, many previously closed cases will be reopening and client will have to appear in immigration court for hearing.  If no relief available, they may face removal order.

If your case was administratively closed before, it's time that you contact experienced immigration lawyer to discuss your options.

DHS proposes to change how to calculate unlawful presence for F, J and M students

Under current interpretation, students in F, J or M status will NOT accrue unlawful presence in the following situations:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  •  The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

Under the proposed policy change, students in F, J and M status will start accruing unlawful presence if they fall into the above listed situations.

This is a dramatic change that will affect students/exchange visitors if they stop attending school, or otherwise fail to maintain the status.

The proposed change is published for public comments.

Choose where to file your asylum application will have major impact on the outcome

News reports say that it is increasingly harder to receive asylum approval under the Trump Administration.

The approval rates of immigration officers and judges may be affected by “America First” policy. According to the latest statistics from the Department of Homeland Security, from January to June 2017, the approval rate in New York were 10.02%, 14.39%, 12.22%, 14.64%, 20.82% and 9.99%, respectively. New York has the lowest approval rate among all the asylum offices.

While applicants file their asylum application in one place but the interview depend on where the applicant live.  You cannot ask for interview in San Francisco, where asylum approval rate is the highest in the nation, if you do not live in the San Francisco jurisdiction (northern California, Oregon, Washington and Alaska).  

2018 H-1B quota reached today

 United States Citizenship and Immigration Services began accepting H-1B petitions on April 2, and on April 6, USCIS announced that it had received more petitions than the entire H-1B cap for Fiscal Year 2019 allows. As in years past, USCIS will conduct a lottery to determine which employers will be able to employ the workers they chose to sponsor.

If not cap-exempt, Congress limits H-1B new hires to 65,000, with an additional 20,000 for individuals who graduated with an advanced degree from U.S. universities that meet certain requirements.

News from the USCIS

Starting April 2, USCIS will destroy Permanent Resident Cards, Employment Authorization Cards and Travel Documents returned as undeliverable by the U.S. Postal Service after 60 business days if USCIS is not contacted by the document’s intended recipient to provide the correct address.   

if is very important to keep your address current.  If you have attorney representing you and you asked the USCIS to mail the cards to your attorney's office, this problem should not occur.

2017 is another great year for our clients

We saw another successful year for our clients.  With the last working day in 2017  to end in a few hours, we can proudly say that with only 3 exceptions, all of our immigrant/non-immigrant/visa cases that were resolved in 2017 have been approved!.  The 3 cases that were not approved represent a small fraction of our cases.  Of which, two were referred to immigration court where we have 100% grant rate in 2017.

We look forward to another successful year in 2018.

Happy New Year to our hardworking team members, our clients and readers of our postings!

International Entrepreneur Rule(IER) May Come Back after all

The Trump Administration delayed the effective date of the Obama Era rules to allow foreign entrepreneurs to receive special "parole" in order to stay in the US to start their new business.

Today a federal judge ruled the delay violated rule of law and invalidated the delay and ordered the government to start process applications of foreign entrepreneurs.  While we do not have any details and the implications of the ruling at this time.  The government may appeal the ruling and anything could happen.  The ruling, however, is a welcome sign that many Trump Administration decisions on immigration may run afoul with the courts.

We will closely watch the development of this matter.

Here is the judge's ruling.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL VENTURE CAPITAL ASSOCIATION, et al., Plaintiffs, v. Civil Action No. 17-1912 (JEB) ELAINE DUKE, Acting Secretary, U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. ORDER For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 

1. Plaintiffs’ Motion for Summary Judgment is GRANTED; 

2. Defendants’ Cross-Motion for Summary Judgment is DENIED; 

3. As the Delay Rule is invalid, it is VACATED; and 

4. Judgment is ENTERED in favor of Plaintiffs. 

T IS SO ORDERED. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: December 1, 2017

US Government sues in federal courts in denaturalization cases

The United States today filed civil denaturalization complaints in federal court in the Middle District of Florida, District of Connecticut and District of New Jersey, against three individuals who allegedly obtained their naturalized U.S. citizenship by fraud, the U.S. Department of Justice and U.S. Citizenship and Immigration Services (USCIS) announced. Two Pakistan-born and one India-born individuals’ alleged frauds involved concealing their prior orders of exclusion and deportation under different identities than the identity under which they naturalized.

The US government can file lawsuit to denaturalize anyone who obtained their citizenship by fraud/misrepresentation or other serious offenses.  Do not think you are safe just because you are now a US citizen, if you have dirty secrets in your immigration file.

45 Chinese EB5 investors may welll lose their money and their American Dream

The Securities and Exchange Commission has announced that it has obtained an emergency court order to freeze the assets of a husband and wife in Arcadia, California, who allegedly defrauded investors in two EB-5 investment offerings.

According to the SEC's complaint unsealed yesterday in the U.S. District Court for the Central District of California, Edward Chen (a/k/a Jianqiao Chen, Jian Qiao Chen, and Jian Chen) and Jean Chen (a/k/a Jing Jiang and Jean Jiang) control several companies that raised more than $22.5 million from 45 investors in China for the development of an interior design center in Ontario, California, and a residential condominium building in Los Angeles.

But the SEC alleges that the Chens stole more than $12 million out of investor funds by issuing cashier's checks to Jean Chen, transferring the money to affiliated entities, and purchasing residential real estate completely unrelated to the two EB-5 projects. The Chens allegedly misappropriated more than 91 percent of the money raised from investors in the interior design center project.

Smaller regional centers and projects do represent bigger risks.  

New rule that may bar you from getting immigration benefits for life

On September 1, 2017, the U.S. Department of State (“DOS”) updated its rules to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”

DOS now has an updated rule titled “Inconsistent Conduct Within 90 Days of Entry” which states:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

In the event that a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit”, they are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

Once you are found to have engaged activities inconsistent with your B or F visa(other types of visa may also be included); DOS may revoke your visa without first contacting you.  You may then be subject to inadmissibility for life unless you receive a waiver.

Please contact us if you have or may have this issue. 

You Could Lose Your US Citizen This Way

A Mexican woman who impersonated a U.S. immigration officer and defrauded undocumented immigrants of thousands of dollars by falsely promising them help to obtain legal status has been stripped of her citizenship by a California federal judge.

U.S. District Judge R. Gary Klausner, of California’s Central District, on Monday revoked the citizenship of Araceli Martinez, who is also known as Maria Araceli Ramos de Martinez. The judge prohibited Martinez from claiming or exercising any rights or privileges of American citizenship, and ordered her to surrender her naturalization certificate and any other citizenship documents to the federal government.

Martinez pleaded guilty to obtaining money, labor or property by false pretense in violation of California state law in Los Angeles County Superior Court in September 2012.

The federal prosecutors said that the native of Mexico falsely presented herself as a U.S. immigration officer to undocumented immigrants between June 2011 and March 2012, offering to help them obtain legal status and scamming them out of thousands of dollars in the process.

Martinez herself applied for citizenship in the midst of her scheme and was naturalized in April 2012.

According to federal prosecutors, Martinez said she had never committed a crime or offense for which she was not arrested during her citizenship interview. This is the key that caused her loss of her US citizen.  If she committed crimes after she became US citizen, she would not have lost her citizenship.

Martinez was arrested by the Los Angeles Sheriff’s Department in June 2012 in the alleged immigration fraud and indicted two days later on 11 counts of obtaining money, labor or property by false pretense under the California statute that governs theft by false pretenses.

When denaturalization proceedings were started by the DOJ in April 2017, Martinez was serving a two-year sentence in the Mendocino County jail in Ukiah, California, for a December 2015 felony grand theft conviction.

First 6 months of the Trump Administration see large increase of deportation

Data for 2/1/17-7/31/17 show that deportation/removal orders are up significantly during the first 6 months of the Trump Presidency.  Here are the numbers: 

Total Orders of Removal: 49,983 Up 27.8 percent over the same time period in 2016 (39,113) 

Total Orders of Removal and Voluntary Departures: 57,069 Up 30.9 percent over the same time period in 2016 (43,595) 

Total Final Decisions: 73,127 Up 14.5 percent over the same time period in 2016 (63,850).

We practice immigration law in court.  If you have any deportation cases or issues please contact us at (415)-576-9923 or email justin@lawbw.com.  Consultation fee may apply.

Can you get an employment based green card under the new immigration reform bill(The RAISE Act)?

Two Republic Senators introduced a new information bill last week.  The bill was supported by  President Trump.

While it is certain that this bill has zero chance of becoming law in its current form, it is interesting to see the concept of the point system spelled out in the bill.

Calculated your points based on the proposal to see if you are qualified to receive a green card(not family based immigration).

The point system lists the following elements to calculate your total points.  You need at least 30 point to be considered for immigration.

 

1.  Age

26-31 years                 10 points

31-35                            8 points

36-40                            6 points

41-45                            4 points

46-50                            2 points

51 or older                     no points

under 18                        cannot apply

 

Your points:  

 

2. Education

High school anywhere    1 point

Foreign Bachelor's degree   5 points

US bachelor's degree      6 points

Foreign Master's in STEM     7 points

US master's in STEM             8 points

 

Your points:  

 

3. English language Proficiency

TOEFL or IELTS

under 59  percentile         no points     

60%-69% percentile       6 points

70%-79% percentile       10 points

80%-89% percentile        11 points

90%-99% percent            12 points

 

Your points:  

 

4.  Extraordinary Achievement

Nobel Laureate or comparable award        25 points

Individual Olympic Medal/first place in an international sporting event    15 points

 

Your points:  

 

5. Job Offer

salary equal or higher than 150% median household income of your state      5 points

if 200% higher        8 points

if 300% higher         13 points

 

Your points:  

 

6.  Investment and management

Invest at least $1.35 million/active role/3 years         6 points

same above with $1.8 million                                    12 points

 

Your points:  

 

Please add all your points to see if you have at least 30.

If you are married, your spouse will need to calculate under the system and if his/her points are higher than yours, use your points to proceed.

If your spouse's points are lower than yours, your points will be adjusted by times 70% and your spouse's points time 30%; then combined your points and your spouse to determine the final points.

Your points:  

Your spouse points:  

Final points after adjustment:  

 

Good luck!