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As of April 2013 most foreign nationals who enter the U.S. will no longer be required to fill out and submit the paper version of Form I-94 when arriving in the U.S. and will not be issued an endorsed Form I-94 by U.S. Customs and Border Protection (“CBP”). Instead, they will be able to print the new record of admission by visiting www.cbp.gov/I94. This printed record will be necessary to prove to employers who must complete I-9’s to verify their employment eligibility and for government agencies such as the Department of Motor Vehicles, and the Social Security Administration when they seek certain licenses, benefits or registrations.
At the time of entry, the CBP will place a stamp in the passport which should include the port of entry, date of entry, authorized period of stay, and class of admission.

The reason for these changes and the new automated procedure, in addition to offering significant savings in costs, should make the admission process simpler and quicker thereby helping to eliminate the long lines at the airports. In addition, now if someone loses their record of admission (old paper Form I-94) they can simply go on line and reprint the proof of admission.

It is possible for errors to occur when CBP enters information into the I-94 system upon a foreign national’s entry into the U.S. If this occurs, it will not be possible to retrieve the I-94 document from the online system. If this occurs, the foreign national may be required to present their passport to the CBP office where the initial entry was made to rectify any issues in the system.

Feel free to contact Berd and Klauss in New York City if you have any further questions on this or any related topic.

As a result of the government shutdown, there are several disruptions that are expected to affect the processing of immigration cases. Below please find a few of the most prevalent disruptions that have had an immediate impact:

1) The Department of Labor (DOL) will not process Labor Condition Applications (LCA’s). Therefore, H1B petitions cannot be filed. In the event of a beneficiary’s immediate expiration of their current H-1B status, one can submit an H1B extension without the LCA and hope that the USCIS will accept the application without the LCA and issue a request for evidence which will allow the petitioning company to submit the LCA once it is able to be filed and approved by the DOL.
2) The DOL will not be issuing Prevailing Wage Determinations (PWD’s). As a result, there is a delay in the filing of PERM applications.

3) The DOL will not be accepting PERM applications. This can cause a problem with the expiration of recruitment campaigns, which are very costly for employers. It may be possible to submit a hard copy to maintain the recruitment timing and obtain a priority date for H1B 7th year extension purposes.

4) The Department of State (DOS) is operating as usual. However, one can expect delays in the processing of both immigrant and non-immigrant visas. Individuals travelling abroad for visa processing should make the necessary arrangements and expect delays.

5) E-Verify services are not available.

Please check in periodically for updates as they occur.

On June 26, 2013 the Supreme Court ruled that The Defense of Marriage Act (DOMA) was unconstitutional. As a result, USCIS has been accepting and processing green card applications for same-sex couples.

As a result, a U.S. Citizen or Lawful Permanent Resident in a same sex marriage may file a Form I-130. However, the spouse of a U.S. Citizen will be immediately eligible to file form I-485 in order to adjust status to a permanent resident or green card holder. This applies even when the foreign national spouse is in the country and has overstayed their visa. However, for foreign nationals who have entered without inspection (EWI) the process becomes more complex.
One of the eligibility requirements for adjustment of status is that the applicant must prove that they were inspected upon entry into the United States. If the applicant does not qualify for Section 245(i) of the INA, which would require a labor certification or immigrant relative petition to be filed on their behalf prior to April 30, 2001, they will require a I-601 waiver. The I-601 waiver process can be a voluminous and lengthy process which requires much preparation.

The USCIS recently implemented changes to I-601 waiver process, which would allow certain immediate relatives to receive the provisional unlawful presence waivers in a timelier manner if they can prove that their removal from the United States would cause an extreme hardship for their USC or legal resident. With the new I-601 process the foreign national spouse can wait for the adjudication of the waiver before he goes for his consular interview and stay in the United States while it is pending. This new waiver is meant to minimize the times of separation since the applicant is required to depart from the United States and apply at a consular office.

The Violence Against Women Act, or VAWA, is a provision of the law which was recently extended under the Obama Administration in 2013. In the context of U.S. immigration law, this allows victims of domestic abuse to remain in the Unites States and seek adjustment of status (a green card). The victims will benefit under VAWA if the abuser is or was a U.S. citizen or lawful permanent resident (LPR) spouse or parent.

VAWA applicants can self-petition for a green card on Form I-360 for immigrant benefits even if the marriage ended in divorce, as long as VAWA self-petitioner can show a connection between the divorce and the domestic violence, and files the petition within the statutory limit of two years from the termination of the alleged marriage. With Form I-360, the applicant must prove through documentation that the marriage was bona fide, that the person has good moral character, and that the U.S. citizen or LPR either physically or mentally abused the spouse during the marriage, or the child during residence with the parent.
In order to meet the relevant standard of proof to meet the VAWA requirements there are various categories and suggested pieces of evidence that could go into a VAWA self-petition. Below please find further explanations:

Personal Declaration
The application should include a detailed declaration describing your relationship with the abuser and any relevant details of your eligibility. The declaration should include details about how you met the abuser and how your relationship developed in addition to the types of abuse you suffered and when each instance of abuse occurred. It is best to include as many details as possible.

Police Clearance Records and Other Evidence of Good Moral Character
You must submit police clearance records from any place you have lived for at least six months during the past three years. These can be obtained at the police station in each place you lived. These clearance records show that you are a person of good moral character and prove that you have not been convicted of a serious crime that might bar you from qualifying under VAWA.

Proof of Your Abuser’s Status (U.S. Citizen or Green Card Holder)
If the abuser is a U.S. citizen, you can submit a copy of the birth certificate, U.S. passport, or certificate of naturalization. If possible, you may be able to obtain a copy of the abuser’s birth certificate through the local records office at the place of birth. If the abuser has already filed a visa petition (Form I-130) for you, you can submit a copy as evidence of his or her U.S. immigration status. If the abuser is a green card holder, you can submit a copy of his or her green card, an I-130 approval notice, or any other immigration documents. If you do not have any of these documents, you can file a Freedom of Information Act (FOIA) request with U.S. Citizenship and Immigration Services (USCIS). The agency will then send you a copy of your immigration file, which may contain some information about your spouse. As a last resort, you can submit written declarations from friends and family who know of the individual’s status.

Proof of Your Relationship
You must also submit proof of your relationship was bonafide. If the abuser is your spouse, you must submit documents to show that you entered the relationship in good faith. Such evidence may include birth certificates of children, photographs, bank account statements, insurance, a lease or property ownership, phone records, utility bills, tax returns, pay stubs, etc. Declarations from family members and friends are also beneficial.

Proof That You Suffered Abuse
The strongest evidence of abuse would be police reports or restraining orders against the abuser. If the abuser was arrested or convicted of physically abusing you, court records and certificates of disposition are important. If you obtained medical treatment, submit copies of your medical records. Similarly, if you have seen a counselor or have gone to a domestic violence shelter, you can submit evidence of that as well. Not only physical abuse is required in order to qualify under VAWA. Emotional or psychological abuse may be enough. If you have seen a psychologist or have been prescribed medication by a doctor due to the abuse, submit evidence of this as well.

As always, if you have difficulty obtaining this type of evidence, you can submit declarations from family members and friends who have witnessed the abuse you suffered, or to whom you have spoken about the abuse.

Any petition filed based on an employment-based immigrant which requires an offer of employment must demonstrate that the prospective United States employer has the ability to pay the proffered wage. In the case where a Labor Certification (PERM) has been filed on behalf of a foreign national, the wage would be stated in the subject Labor Certification and the priority date would be dictated by the date of the Labor Certification. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. The employer does not have to pay the offered wage at the PERM stage, they simply have to attest and prove that they have the ability to pay the offered wage from the date of the PERM filing through the approval of the foreign national worker’s permanent residence (I-485) approval. USCIS may even check the petitioner’s ability to pay during the I-485 adjustment status process even after the I-140 has been approved.

Evidence of ability to pay the wage may be either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which establishes the prospective employer’s ability to pay the proffered wage. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the USCIS.

This initial evidence should be used to determine ability to pay the proffered wage. Initially, USCIS will review one of the following three equations to determine of the employer has satisfied the ability to pay standard:

1) Net income – The initial evidence reflects that the petitioner’s net income is equal to or greater than the proffered wage.

2) Net current assets – The initial evidence reflects that the petitioner’s net current assets are equal to or greater than the proffered wage.

3) Employment of the beneficiary – The record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but also has paid or currently is paying the proffered wage.

Despite the inability for some petitioner’s to meet the above requirements, there are discretionary factors that USCIS can consider when adjudicating an I-140 Petition and the Ability to Pay the proffered wage. A review of the relevant case law reveals shows that a totality of the circumstances is the standard used. The leading case on the matter is Matter of Sonegawa. Sonegawa allows an employer to show ability to pay if it has a reasonable expectation of future financial profit, such that the ability to pay the proffered wage is fulfilled upon the alien obtaining permanent residence. An employer’s expectations of future financial profit are reasonable if:

An employer shows it has been making a living and employing people without any evidence of financial difficulties; the employer establishes that it incurred unusual expenses in the year of filing that temporarily worsened its financial situation; the employer shows a significant increase in income in the years subsequent to the filing of the petition as established by relevant professionally prepared financial documents.

Upon filing an adjustment of status petition based on marriage to a U.S. Citizen the foreign national must appear at the local USCIS office with their spouse for an interview. The main purpose of such an interview is to prove the bonafides of the marriage and that it was entered into in good faith.

If the adjudicating officer is not convinced that the marriage is in good faith he/she can conduct a second interview where the couple is separated and asked a series of questions to see if the answers match up. Such an interview is called a Stokes Interview, named after the seminal case establishing the government’s right to conduct such an interview.
The Stokes interview is meant to alleviate any concerns the immigration agency may have about the marriage. Because of the agency’s fears about marriage fraud, many innocent couples get caught up in a Stokes Interview. Both the US citizen and the foreign national spouse must attend the Stokes interview. Normally, the immigration official will invite the couple back to a small room where he or she will instruct the couple on the purpose of the interview. The immigration official will also begin videotaping the couple. The immigration official will then divide up the couple and ask each spouse a number of questions about the couple’s marriage, apartment, activities, and family.

Almost any kind of question can be asked during the Stokes interview. However, based upon the Stokes settlement, the immigration official cannot ask intimate questions, and cannot act in an abusive or profane manner.

Many applicants ask what questions are asked at a Stokes Interview. Some sample questions for a Stokes interview may include the following:

  • Do you live in a home (single family, condominium, townhouse) or apartment?
  • How much is the mortgage or rent? Who pays it?
  • How much does your spouse make? How does he get paid? Times per month?
  • Who cleans the house?
  • What are the garbage pick up days?
  • How many telephones are in your house? Where are they?
  • Do both of you have cell phones? Do you have family plan on the phones?
  • Does your phone have answering machine? Who checks the messages?
  • Who makes the breakfast?
  • What does your spouse drink in the morning? (Such as coffee, tea, milk etc.) If so, does he/she use cream and/or sugar?
  • What is your spouse’s most (or least) favorite food?
  • Did you or your spouse go to work yesterday?
  • If so, at what time did you and/or spouse leave the house and return?
  • Did you eat dinner together last night? What did you have?

In New York, a Stokes Interview can be conducted on the same day as the initial interview or at a later date. It is advisable to have an NYC Immigration Lawyer attend a Stokes interview so that a 3rd party can be present in the room during the interview as a witness to the questions and answers of both the petitioner and the applicant.

On June 26, 2013 the Supreme Court ruled, by a 5-4 vote, The Defense of Marriage Act (DOMA), the law barring the federal government from recognizing same-sex marriages legalized by the states, was unconstitutional.

Soon after the decision Secretary of Homeland Security, Janet Napolitano issued the following statement “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.
As a result, a U.S. Citizen or Lawful Permanent Resident in a same sex marriage may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Moreover, according to USCIS guidance, a legally married same sex couple can still file for immigration benefits even if they reside in a State that does not recognize same sex marriage. USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes.

There are nine requirements in total. They are:

  • Requisite treaty exists;
  • Individual and/or business possess the nationality of the treaty country;
  • Applicant has invested or is actively in the process of investing;
  • Enterprise is a real and operating commercial enterprise;
  • Applicant’s investment is substantial;
  • Investment is more than a marginal one solely for earning a living;
  • Applicant is in a position to “develop and direct” the enterprise;
  • Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States;
  • and Applicant intends to depart the United States when the E-2 status terminates.

If you are considering applying for an E-2 Treaty Investor Visa and would like to speak to an attorney about this matter, call 212-461-7152 for a free consultation.

The nationality of a business is determined by the nationality of the individual owners of that business.

If you have an immigration matter and need assistance please call us at (212) 461-7152.

The qualifying treaties may include treaties of Friendship, Commerce and Navigation and Bilateral Investment Treaties. The Treaty Countries are listed in section 9 FAM 41.51 Exhibit I. These countries are:

  • Argentina
  • Pakistan
  • Germany
  • Australia
  • Philippines
  • Honduras
  • Bangladesh
  • Romania
  • Belarus
  • Senegal
  • Italy
  • Taiwan
  • Switzerland
  • Latvia
  • Congo
  • Togo
  • Luxembourg
  • Czech Republic
  • Tunisia
  • Ecuador
  • Turkey
  • Moldavia
  • Georgia
  • Armenia
  • Panama
  • Grenada
  • Austria
  • Poland
  • Iran
  • Ireland
  • Belgium
  • Slovak Republic
  • Kyrgyzstan
  • Colombia
  • Thailand
  • Liberia
  • Costa Rica
  • Trinidad and Tobago
  • Mexico
  • Morocco
  • Ukraine
  • Bosnia
  • Spain
  • Bulgaria
  • Sri Lanka
  • Kazakhstan
  • Canada
  • Sweden
  • Uzbekistan
  • Estonia
  • United Kingdom
  • Ethiopia
  • France
  • Jamaica
  • Bosnia and Herzegovina
  • Japan
  • Cameroon
  • Suriname
  • Korea
  • Mongolia
  • Netherlands
  • Finland
  • Yugoslavia
  • Oman