Category Archives: Consular Processing

Same-Sex Marriages and “DOMA”

defRecently, the U.S. Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. government agencies will adjudicate applications for federal benefits that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses. This means that the same sex spouse will be eligible for the same or derivative benefits. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.

If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for purposes of obtaining federal government benefits. At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.

For most federal benefits involving children or step-children, the marriage must have taken place before the child in question turns or turned 18.

If cases were previously submitted and denied by the government, solely based on reasons relating to “DOMA”, the government will now usually reopen those petitions or applications. The government will usually take steps to reconsider its prior adverse decision, as well as reopen associated applications to the extent they were also denied as a result of the primary denial (Example: when Form I-130 was denied, and subsequently Form I-485 is denied, all related cases will be reopened).

Israelis Eventually E-2 Eligible.

In June 2012, President Obama signed into law legislation that adds Israel to the list of countries eligible for E-2 treaty investor visas. Regrettably, Israel nationals remain ineligible for E-2 status because of delays in implementing the new law.
The legislation is conditioned upon visa reciprocity. Accordingly, once the new law was sent to the State Department for implementation, teams from the United States and Israel began discussing the terms and conditions that E-2 status will provide to Israeli investors in the U.S. and examining whether Israel will provide similar terms and conditions for American investors in Israel. These discussions were complicated by the fact that Israeli immigration law does not currently provide for a visa category that parallels the E-2 visa.

Indeed, Israel has only one non-immigrant work visa category, with visas issued for one-year validity periods and with an absolute maximum stay in the country of five years. (The E-2 visa, of course, can be issued for an initial period of up to five years.) Moreover, the options under Israeli immigration law for derivative visas on behalf of accompanying family members are extremely limited with no provision for a benefit resembling the E-2′s Employment Authorization Document (EAD) for an accompanying spouse.

However, the implementation of this visa category will not be effective until the terms and conditions of the final agreement are determined between the two countries. [...] The Department does not yet have a basis for determining that Israel offers equivalent status to U.S. investors in Israel – a statutory prerequisite for issuance of E-2 visas to Israeli nationals. Through our Embassy, we have been working with Israeli government officials to facilitate Israel’s development of a visa status similar to the E-2.

Don’t gamble, if you’re not prepared to win!

Every year, in the course of my professional practice as an immigration lawyer, I meet or know of at least 2-3 people who win the Greencard by virtue of the annual “Diversity Visa”-Lottery.    While this in itself may not be that unusual, I AM, however, astounded time and time again when I meet someone who either returned the Greencard after receiving it, or, in the alternative has no intention whatsoever to relocate to the United States.

On a near daily basis, I meet foreign nationals who would literally give ANYTHING to obtain a Greencard.  These people will often spend years of their lives,  thousands of dollars of their money, and many sleepless nights doing whatever possible in their power to get to that coveted lawful permanent resident card.

With this knowledge, I am completely dumb-founded when someone who actually won the Greencard-Lottery not only was notified as a “winner”, but also took the affirmative steps necessary to complete the residence process and take possession of the Greencard and then actually either voluntarily turn in the card, or never actually move to the U.S., because it does not fit into their life-plan.

I wonder why these types of individuals actually participate in the Lottery, when they know full-well, that participating in the lottery brings with it the chance of a “win”, and that they could likely receive 1 of an annually limited number of available Greencards…   Why play this kind of lottery when you are not prepared for (or willing to accept) the consequences of a possible win?

People should approach the Greencard Lottery in the same way, as they otherwise would when they make an offer to purchase something.   When the other side in an agreement accepts the offer, as it was made, then a binding legal agreement (i.e. “contract”) exists.   Once this contract exists, there will be legal consequences, whether one follows through on the transaction or not.

While I often counsel eligible persons to participate in the annual Greencard Lottery, I also advise of the obligations that come with the participation in the event of a winning-notification.   Persons contemplating participating in the lottery should not do so lightly and without sufficient deliberation. Keep in mind that when you play, you could potentially win.  If you win, you should be able to follow through and make the required relocation to the United States.  The Greencard requires by law that the possessor relocate his/her worldwide residence from abroad INTO the United States, and be physically present in the United States at least 6 months out of the year (some exceptions may apply).

If you have any specific questions or concerns about the Lottery, or the requirements of a lawful resident in the United States, please feel free to contact me.

Clarifications on the Scope of “Investment” in the E-2 visa

Time and time again, I receive various queries regarding the “investment” component of the E-2 visa.   In the day and age of readily available information-overload (thanks, Google), much has been written over the years regarding the E-2 visa and its requirements, particularly about “how much” to invest in order to maximize chances of receiving the E-2 visa (or status).

While there are many different figures cited in various blogs, newsgroups, and other sites,  ranging from $25,000 to $2.5 million, there is NO OFFICIAL MINIMUM which the U.S. government dictates MUST be invested in the E-2 visa context.

In 10+ years of my immigration law practice, I can say, based on actual E-2 cases, one can say that average investments in approved cases range between $50,000 and $250,000, ordinarily.

However, it is important to stress that the appropriate level of investment varies from case to case and is reviewed by the U.S. government as such, on a “case-by-case” basis.   While an investment of $35,000, for example, could be approved in one case, it may very well be denied in another.   The same holds true for an investment of any other amount.

As prospective investor, in order to maximize one’s chances of successful E-2 visa issuance, one must remain mindful of several factors, which will be important in the government’s decision-making process:

(1) What is needed investment-wise, to get YOUR U.S. business up and running properly.
(2) the amount invested is the “correct” and adequate amount, given your unique situation.
(3) the amount invested is “sufficient” to safeguard your ongoing commitment to the success of the enterprise.
(4) the investment is potentially “subject to partial or total loss”, if business fortunes turn bad. (no financial safeguard!)
(5) the investment funds cannot be withdrawn at will, once the visa is issued, but must remain in the enterprise.
(6) based on the investment, the U.S. business enterprise will likely be profitable within the first 5 years of operation.

There are, of course, additional E-2 visa requirements, not directly relating to the investment.

The MORE you accomplish before the visa is applied for, the HIGHER the likelihood of the visa being granted.  In other words, the more of the start-up commitment and risk you take upon yourself before applying, the better your chances.

Update on Russian Ban on U.S.-bound Child Adoptions

Just days ago, the Russian Supreme Court issued a letter providing guidance to regional courts. The letter clarifies that families that have had their preliminary court date prior to January 1, 2013 will be able to assume physical custody and obtain the necessary documents from Russian authorities to exit the country. This will be the case even if the 30 day waiting period expired after January 1, 2013. To date, 25 families have obtained visas to leave the country and some have travelled home with their children.

At the same time, other families in-country have experienced delays and have been unable to obtain necessary paperwork from Russian authorities. It is hoped that the Russian Supreme Court letter will help families move forward. Families who fall into this category should contact the U.S. Embassy in Russia, if they have not already done so. They should also keep in close contact with their adoption service providers who are still permitted to process these transition cases and who have more real-time information.

How to Change information on Form DS-160

While it is not possible to change information on a DS-160 after it has been submitted, there are two easy options for creating a new DS-160.

If it is within 30 days from when the original application was submitted, the first option is to log into the CEAC system and select “Retrieve an Application” using the application ID number. Next, you will be asked whether you want to go to the confirmation page or create a new application. Select create a new application, and the entire application will appear, except for travel plans to the U.S. Then, you will need to edit and update the information and submit again.

Alternatively, if you saved the DAT file from the original application, you can access and amend the information at any time from an already submitted application. Once the changes have been made, save and submit the new application.

For either option, if the original DS-160 was used to book the visa appointment or pay the MRV fee, the applicant MUST present at the interview the confirmation pages from the new AND original DS-160, as each submission creates a different barcode.

USCIS to begin collecting new Immigrant Visa Fee on Feb. 1.

Starting February 1, 2013, USCIS will begin collecting a new fee of $165 from foreign nationals arriving in the United States as new immigrants.

The agency said it has worked closely with the Department of State (DOS) to implement the new fee, which will allow USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa-holders receive their visa packages from DOS. This includes staff handling and the cost of producing and delivering the permanent resident card.  Applicants will pay online through the USCIS website after they receive their visa packages from DOS and before they leave for the United States. DOS will provide applicants with information on how to submit the payment when they attend their consular interviews. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.

USCIS processes approximately 36,000 immigrant visa packages each month. Adoption cases are generally exempt from the new fee.

Historic Visa Agreement between U.S. and Russia

The Department of State announced that a “historic” U.S.-Russia visa agreement entered into force on September 9, 2012. The agreement facilitates travel between the two countries and “enables us to strengthen ties between our people by benefiting the largest segments of travelers in both our countries – business travelers and tourists,” the Department said in a statement. Among other benefits, the agreement provides for longer visa validity.

Nearly 159,000 business and tourism visas were issued in fiscal year 2011 to Russian citizens. Over 75,000 U.S. citizens travel to Russia annually, the majority of whom require Russian visas.  The agreement includes these key provisions:

  • Three-year, multiple-entry visas will be issued as the standard “default” visa for U.S. citizens visiting Russia and Russian citizens visiting the United States;
  • Diplomatic and official visa holders on temporary assignments will receive one-year, multiple-entry visas;
  • The documentation required will be reduced. For example, the Russian government will no longer require U.S. citizens to provide formal, “registered” invitation letters when applying for Russian business visas or visas for private visits, although applicants seeking Russian tourist visas must continue to hold advance lodging reservations and arrangements with a tour operator;
  • Both sides have committed to keeping standard visa processing times under 15 days, although the circumstances of individual cases may require additional processing; and
  • The $100 issuance (reciprocity) fee for Russians issued U.S. visas for business or tourism (B-1/B-2) will decrease to $20.

Talking Points on “DREAM Act”

THE DREAM ACT: A CENTRAL ELEMENT OF REFORM
The Development, Relief and Education of Alien Minors (DREAM) Act (S. 729/H.R. 1751) is a bipartisan bill that would provide a conditional six-year pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. if they: 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 U.S. military. The bill also would also repeal section 505 of the Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) that prohibits states from providing any higher education benefit based on residency to unauthorized immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence.


THE DREAM ACT CAN STRENGTHEN THE U.S. ECONOMY

The students who would benefit under the DREAM Act have been raised and educated in the U.S. and by allowing them to pursue a higher education, we are investing in the future of our country and our economy.
•  Communities, states, and nation would reap significant benefits from the DREAM Act. A RAND study showed that a 30-year-old Mexican immigrant woman who graduated from college will pay $5,300 more in taxes and cost $3,900 less in government expenses each year than if she had dropped out of high school. This amounts to an annual fiscal benefit of over $9,000 every year, money that can be used to pay for the education of others.
•  DREAM Act beneficiaries will make up part of the educated workforce needed to help the U.S. compete in the global economy. In our globalized world, their multilingual and bicultural skills, and contributions are more important than ever to the success and global competitiveness of the United States.

CURRENT LAW PROVIDES NO WAY FOR THESE CHILDREN TO ACHIEVE LEGAL STATUS

•  Due to the undocumented status of their parents and other family members, they have no available avenues for family-based visa sponsorship.
•  Few employers would or could sponsor them for a work visa due to their age and lack of work experience. Even if an employer was willing to sponsor them, the process takes precious years that these children cannot afford to waste.

STATES SHOULD HAVE THE RIGHT TO DETERMINE WHO QUALIFIES FOR IN-STATE TUITION

•  States are required to invest in elementary and secondary education for undocumented children, but can’t collect on the return. However, when states are ready to earn a return on their investment through a highly educated workforce, they are barred from offering in-state tuition to these children. The states (and their taxpayers) have the right to earn this return.
•  States should have the authority to determine how they allocate their resources. Such an educational investment pays dividends for the states by reducing the dropout rate, leading to substantial savings in criminal justice costs and the use of public benefits, and sharply increasing the taxes paid by those benefiting from this initiative. AILA InfoNet Doc. No. 09043072. (Posted 3/19/10).

THIS BILL REFLECTS A BALANCED APPROACH TO REFORM AND MUST BE PART OF ANY COMPREHENSIVE EFFORT TO OVERHAUL OUR IMMIGRATION LAWS

•  This measure would require children to have lived in the U.S. for a number of years and to have no criminal record.
•  This measure would require eligible children to dedicate themselves to learning English and succeeding in our educational system.
•  This measure proposes a one-time only fix that would not encourage illegal immigration.

This measure recognizes that the status quo needs to be reformed by granting children the means to continue their education and legalize their status. Such reform works for children and works for America.

U.S. Dept. of State to Change Visa Fees

The U.S. Department of State is changing is current visa fee structure as of April 13, 2012. Currently, for Non-Immigrant Visas, the fees are as follows:

  • MRV Fee – $140:00;
  • Petition Based Applicants (H, L, O, P, Q, R) – $150:00;
  • E-1, E-2 & E-3 visa applicants – $390.00.

Although most categories of nonimmigrant visa processing fees will increase, the fee for E-1, E-2 & E-3 visas, K visas (for fiancé(e)s of U.S. citizens) and all immigrant visas will actually decrease.

From April 13, 2012, most nonimmigrant visa applicants will pay an MRV application fee of $160.00 to apply for a visa; petition based applicants $190.00.00 and E-1, E-2 & E-3 visa applicants $270.00.

Nonimmigrant visa applicants who pay the MRV fee before April 13, may use the MRV fee receipt to apply for a visa up to and including July 12, 2012.  Applicants who apply on or after July 13, 2012 will be required to pay a supplemental fee in order for their application to be processed.  Please note that were there is a decress in fees, there will be no refund, regardless of when the application is received.

The increase in nonimmigrant visa fess is attributed to fact that the Department of State  is required to recover, as far as possible, the cost of processing visas through the collection of application fees.  For a number of reasons, the current fees no longer cover the actual cost of processing nonimmigrant visas.  The nonimmigrant visa fee increase will support the addition and expansion of overseas facilities, as well as additional staffing required to meet increased visa demand.

Because of a reallocation of costs associated with immigrant visas, however, all categories of immigrant visa processing fees will decrease from April 13, 2012.

The fees for Immediate Relative and Family Preference applicants will be $230.00; Employment based applicants $405.00; Diversity Visa applicants $330.00, Returning Resident status $275 and for all other immigrant visa applicants, the fee will be $220.00.  Please note that these fee are in addition to the fees charged to file an immigrant visa petition with the U.S. Citizenship and Immigration Services.