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Travel Warning for Nationals of Certain Countries Designated by Executive Order

  • The American Immigration Council has posted a practice advisory, Challenging President Trump’s Ban on Entry, which provides information about how last Friday’s Executive Order is being implemented, offers resources and practice tips for attorneys whose clients are affected by it, and outlines legal challenges that have been filed to date.
  • DHS issued guidance on 1/29/17 stating that those individuals “traveling on passports from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States.” (Emphasis added.) This weekend, DHS told AILA that anyone who holds a passport from a designated country is considered as being “from” the designated country. See 1/28/17 update below.
    Read More

There Is No Immediate Need To Plan A Move To Canada

Trump was elected President and the Republicans control both the House and the Senate. Immigrants are wondering, “What does this mean for me?” Before I explain that, let me say this first -there is no reason to push the panic button. America may have lost but you have not.  To begin with, Trump cannot change/repeal Congressional Law.  Employment and Family based visas derive their authority from the Immigration and Nationality Act and it is extremely unlikely that those will be repealed.  The areas that are likely to get impacted are those immigration benefits/relief that were implemented via Executive Action like DACA, the H-4 EAD.  A Trump Presidency means three things for Immigration:Read More

Much Longer Wait Times for Green Cards- Department of State Edits Previously Modernized Visa Bulletin

Department of States Alters Recently Modified Visa Bulletin

On September 9th the Department of Homeland Security released new updated changes to the visa bulletin. These changes modernized the visa system and moved up priority dates for those applying for adjustment of status. The revisions to the visa bulletin were part of President Obama’s plans to modernize the US immigration system. Obama’s proposed changes to modernize and streamline the immigration system were detailed in a White House report released back in July.

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Just two weeks after the updated September 9th visa bulletin was released, the visa bulletin changed again on September 25th pushing back priority dates significantly. Those affected will have to wait years longer to file for adjustment of status than previous indicated by the visa bulletin released on September 9th.

Changes to Visa Bulletin Announced September 25, 2015

The Department of State pushed back the priority dates for those waiting to apply for a green card. Those affected will have to wait several years longer in some cases.

Those affected can be summarized as:

  • EB-2 China- Old priority date was May 1, 2014. New priority date January 1, 2013. This is a 1 year, 5 months difference.
  • EB-2 India- Old priority date was July 1, 2011. New priority date July 1, 2009. This is a 2 years difference.
  • EB-3 Philippines- Old priority date was January 1, 2015. New priority date January 1, 2010. This is a 5 years difference.
  • FB-1 Mexico- Old priority date was July 1, 1995. New priority date is April 1, 1995. This is a 3 months difference.
  • FB-3 Mexico- Old priority date was October 1, 1996. New priority date is May 1, 1995. This is a 1 year, 5 months difference.

What Does This Mean?

Those eligible to apply for green cards will now have to wait longer than previously projected just 2 weeks ago. Originally the changes to the visa bulletin would have allowed many immigrants to apply for green cards several years earlier. Now in some cases, those eligible will have to wait 5 years longer. Foreign nationals from China and India will face significantly longer waits, 1 years 5 months and 2 years longer respectively.This change will impact thousands of families living in the US, who planned to receive a green card much earlier.

Additionally these actions reflect an unfortunate step backwards for the US immigration system. For several years the visa bulletin needed updating to decrease the backlog of immigrants waiting to file for adjustment of status. Unfortunately when a change finally occurred that would have dramatically decreased the wait time and positively affected many immigrants and their families, the visa bulletin was quickly reverted back to the old system of long wait times.

Contact Us

To navigate the visa bulletin, determine correct filing dates or receive assistance filing for adjustment of status contact the Law Office of Sweta Khandelwal. Attorney Khandelwal can assist with employment-based or family-based visa applications. The Law Office of Sweta Khandelwal is located conveniently in the Silicon Valley.

 

Cited Sources:

DOS Publishes Updated Visa Bulletin for October 2015, September 25, 2015, USCIS

 

 

Obama Administration Encourages Lawful Permanent Residents to Become Citizens

Lately there has been a push by the Obama administration and the USCIS to encourage and celebrate US citizenship. The USCIS launched a citizenship campaign to raise awareness about citizenship and education about the naturalization process. President Obama also utilized Citizenship Day, which occurred in September, to encourage legal permanent residents and those eligible for citizenship to start the naturalization process. The USCIS has also taken steps to ease the naturalization application process, which may help to speed the process for those seeking US citizenship. These pushes may be in an effort to increase the number of US citizens in time for the next presidential election.

us-flag-in-boston-1443856USCIS Launches Citizenship Public Education and Awareness Campaign

Part of Obama’s executive action for immigration reform established last November is to increase awareness and promote easy access to naturalization. To help meet these goal the USCIS has taken steps to promote citizenship. In July the USCIS launched a campaign to increase education and raise awareness about the importance of naturalization.

Also to make sure potential applicants are aware of their eligibility, the USCIS will begin electronically notifying lawful permanent residents who may be eligible to begin naturalization. A message will pop-up on the USICS website when the lawful permanent resident replaces or renews a green card which will notify the applicant that it may be time to apply for citizenship.

Obama Urges Lawful Permanent to Seek Naturalization

Only U.S. citizens will be allowed to elect the next US President. With the 2016 Presidential Election just around the corner, Obama has encouraged those eligible to become a citizen to begin the naturalization process. On September 17th, Citizenship Day, Obama released a video encouraging legal permanent resident to take the final step in the immigration process and become a US citizen.

The USCIS has made the naturalization process easier by allowing credit card payments for the naturalization fee. The USCIS will also expand mobile services to rural communities to boost access to its resources. This may ease the immigration process and increase the number of US citizens before the 2016 election.

According to the Department of Homeland Security over 700,000 persons were naturalized in 2013. With Obama’s urging to legal permanent residents to apply for citizenship and the steps taken by the USCIS to ease the naturalization process, it’s possible even more legal permanent residence will become citizens this year in time for the 2016 presidential election.

Naturalization Process

Naturalization is the process by which a person become a US citizen. A person can become a citizen at birth, derive citizenship through one’s parents or apply for naturalization. Generally those who apply for naturalization are required to take an English test and a test on US history and government. Once the naturalization process is complete the applicant is required to turn in the legal permanent resident card, if applicable. The new US citizen can then register to vote.

Contact

To discuss how to gain lawful permanent residence or how to apply for naturalization contact the Law Office of Sweta Khandelwal. Attorney Khandewal has over 10 years experience with immigration law and is conveniently located in the Silicon Valley.

Parole Program for Entrepreneurs Part of Obama’s Executive Action

Part of the executive action announced by President Obama for immigration reform last November was a parole program for entrepreneurs. Entrepreneursare extremely valuable to American business and are responsible for many start up companies in the US. To make it easier for entrepreneurs to come to the businessman-with-the-notebook-1-1362246-mUS and set up businesses, parole could be extended to entrepreneurs who qualify.

The executive action called for an additional program specifically for entrepreneurs under the “significant public benefit” parole already in force. This benefit will allow immigrants to take part in the immigration system when it is established that the entrepreneur will bring a significant public benefit to the US. The new parole program for entrepreneurs will also be an option for inventors and researchers.

Although comprehensive details have not been fully laid out, the new program will allow the DHS to extend parole on case-by-case a basis to entrepreneurs who qualify. Eligible founders of start up businesses may include those who either:
(1)demonstrate substantial US investor financing or (2) otherwise show promise of innovation and job creation through the development of new technologies.

There are two major ways entrepreneurs may be able to benefit through the parole program, through lawful permanent residency and temporary status.

Lawful Permanent Residency

Requirements for lawful permanent residency will be waived when in the best interests of the nation. This will be called a “national interest waiver,” greater detailed will be provided at a later time by the DHS.

Temporary Status

The second major way that entrepreneurs can benefit is through temporary status. Currently temporary status can be granted in circumstances where the DHS determines a significant public benefit will result when granted to certain individuals. The new parole program will create a “parole status” which can be granted to certain entrepreneurs who will yield a significant public benefit. These visas will likely be granted on a case-by-case basis depending on the benefit the entrepreneur would bring into the US.

Income Requirements

Interested entrepreneurs should also be aware that those who qualify must also meet certain income requirements. Those enrolled will not be eligible for federal public benefits or Affordable Care Act subsidies.

The motivating factor behind this initiative is to allow entrepreneurs to research and develop new ideas in the US rather than abroad. This will bring more business and innovation into the US and could be accompanied with job creation as well. This program will help serve the executive action goals of updating outdated immigration practices. This could also be big news for Silicon Valley immigration, the home to many start-ups and new technology companies.

Entrepreneurs wanting to move to the US could benefit from the parole program either through permanent or temporary visa status. To discuss this program further contact the Law Office of Sweta Khandelwal. Attorney Khandelwal is located in the Silicon Valley and has practiced immigration law for over 10 years.

Cited Sources

Memorandum for Director of USCIS, Policies Supporting U.S. High- Skilled Business and Workers, November 20 , 2014, DHS

 

 

L-1B Denials Particularly High for Indian Nationals

L-1B classification was initially created by Congress to allow multinational companies to easily transfer employers from foreign operations to intra-company offices in the United States. To receive L-1B classification the applicant must work abroad for the overseas arm of the US employer for one continuous year and demonstrate that he has “specialized knowledge” in relation to the employer’s organization.people-at-work-4-37060-m

When Congress created this classification, “specialized knowledge” was not well defined. The lack of guidance on the meaning of “specialized knowledge” has led to many denials.

L-1B denials are at an all time high The National Foundation for American Policy (NFAP) just released a report analyzing L-1B denials. The report revealed that L-1B denials have reached a staggering rate of 35% for the 2014 fiscal year. In 2006 the L-1B denial rate was only 6% but this rate climbed to 22% in 2008 and steadily increased each year.

 

Indian nationals experiencing high denial rate India is experiencing particularly high denials of L-1B visas. In its report NFAP reveals that between the fiscal years 2012 and 2014, Indian nationals were denied L-1B visa classification at a rate of 56%. During the same time period denials of L-1B visas all other countries besides India was 13%.

There are many speculated reasons why India is experiencing such a high denial rate. Many critics of the L-1B visa allege that Indian IT companies transfer employers to different offices in the United States in order to turn a larger profit in its company. This could mean that a qualified United States worker who could do the work of the Indian employee working in the United States is replaced any an Indian national in the United States on an L-1B visa.

However, many speculate that the lack of guidance on the meaning of “specialized knowledge” leads to denials because it is not clear what an applicant should highlight in his application to be considered for an L-1B visa. The new guidelines for L-1B visa clarifications will hopefully offer much needed insight and lead to more approvals.

New guidance on “specialized knowledge” released by USCIS expected to take effect in August USCIS released a Policy Memorandum this week that gives more insight into the meaning of specialized knowledge needed for L-1B approval. This memorandum will accept feedback until May 8, 2015 and is expected to go into effect on August 31 of this year if the USCIS does not further modify the guidelines. In the memo “special knowledge” is defined as knowledge of the “employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry.” The USCIS also provides an alternative definition of advanced knowledge, which relates to expertise in the employer’s processes and procedures more advanced than generally found within the organization.

To breakdown this lengthy definition, the USCIS gives some examples of specialized knowledge. Some of those examples are:

1. The employee can contribute to the United States operation of foreign operations and his knowledge is not generally found in the United States office. experience with that employer.

2. Specialized knowledge can generally only be acquired through past

3. Knowledge of a process or product that is complex or high technical.

4. Employee has been employed abroad and conducted assignments that enhance the company’s productivity, competitiveness or image.

The new clarification in the L-1B nonimmigrant visa will take place in August at the earliest. Hopefully the further clarification into the meaning of “specialized knowledge” will guide employers through the immigration process and lead to more approvals in the following years.

Contact the Law Office of Sweta Khandelwal to discuss filing L-1B nonimmigrant visas in accordance with the new guidelines.

Cited Sources:

In boost to Indian companies, US to ease L-1B visas, March 25, 2015, Chidanand Rajghatta

Policy Memorandum, L-1B Adjudications Policy, March 24, 2015, USCIS

L-1 Denial Rates Increase Again for High Skill Foreign Nationals, March 2015, National Foundation for American Policy

L-1 Visa Alarm for Indian IT,March 26, 2015, Indian American Times

 

Protect Yourself Against Common Immigration Scams

family-944773-mScam artists have always targeted immigrants but with the Obama Administration’s issuance of the new Executive Order scams could be on the rise. The immigration reform has caused much confusion among immigrant populations causing some families to dish out extra money to alleged immigration attorneys scamming them into believing their immigration status is at risk.

Immigration problems are very serious and can provide significant stress on immigrant families. Scam artists understand how stressful immigration problems can be and prey on the weaknesses of vulnerable immigrants. Scam artists are also aware that immigrants are not likely to report scams out of fear of being deported, making immigrants even more vulnerable.

One important point to note is that many businesses offering immigration services are not law firms and do not employ immigration attorneys. This confusion may lead people to believe they have hired an attorney when they haven’t. These business may employ immigration consultants who are not attorneys and cannot provide the same services as an attorney. Immigration consultants can provide some assistance with immigration issues but do not have the same power as an attorney. They are also referred to as “Notarios”.

TheOffice of the Attorney General’s website notes the difference between an immigration consultant and immigration attorney. Only attorneys that are licensed to practice law can give legal advice.

Immigration consultants mayoffer similar services of that of an immigration attorney but it is important to note that an immigration consultant can only provide non-legal help. Examples of the kind of help an immigration consultant may supply is translating forms or documents, submitting your forms to the INS, or advising you as to which forms you should file.

Often time scam artists will pose as an immigration attorney or consultant. The Office of Attorney General notes some common scams that con artists often employ to trick immigrants:

  1. Representing oneself as an attorney or immigration consultant when one is not qualified.
  2. Filing unnecessary applications.
  3. Charging for services that were never conducted.
  4. Keeping an applicants original documents and then charging a fee in order for the applicant to get the documents back.
  5. Charging a fee upfront for services and then charge additional fees in order to do more work for the applicant.

Attorney General Kamala Harris also provides a list of good practices for anyone using the immigration system in order to minimize the possibility of getting duped by unscrupulous immigration consultants. Some of her suggestions are:

  1. Do not accept legal advice from someone that is not a licensed attorney.
  2. Do not pay a fee to an immigration consultant in exchange for referring you to an attorney.
  3. Do not trust telephone scammers that pretend to be immigration officials. These scammers will often ask you for personal information or payment information over the phone.
  4. Beware and take caution against internet scams.
  5. Never sign any immigration forms that contain false information or are blank.

It’s important to ensure your immigration matters are handled by an attorney you trust. Sweta Khandelwal is a seasoned immigration lawyer licensed to practice law and has been working in the field for over 10 years. She has spoken at several different conferences in India and the United States on immigration issues. Contact The Law Office of Sweta Khandelwal today to discuss any issue or anxiety you have about the immigration process.

Cited Sources:

Attorney General Kamala D. Harris Issues Consumer Alert on Scams Targeting Immigrants and their Families, November 25, 2014, State of California Department of Justice Office of the Attorney General.

Immigration Consultants, State of California Department of Justice Office of the Attorney General copyright 2015.

How President Obama’s “Immigration Accountability Executive Action” Affects Employment-Based Immigration

President Obama’s “Immigration Accountability Executive Action” proposes several changes to the immigration system many of which could affect employment-based visas. The proposed changes could be good news for employees and employers by decreasing wait times for certain classifications, allowing spouses of H-1B visa holders to work and in some cases increasing the amount of time a employee can remain on his visa.

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The employment-based changes will affect green cards, H-4, L-1B, OPT and PERM classifications.

Ex
ecutive Action re Pre-Registration for Adjustment Cases
Main proposals:

  • Decrease wait time to file adjustment of status
  • Pre-register for green card and receive green card benefits while waiting for approval
  • Allow the temporary non-immigrant visa holder to change jobs while before green card is approved

The Executive Order’s proposals for readjustment cases will significantly benefit temporary non-immigrant visa holders. These visa holders will no longer suffer from long wait times before they eligible to even apply for a green card. Scrapping long wait times will allow immigrants to move through the once long and extensive process much faster. Green card holders are given more rights and benefits than temporary non-immigrant visa holders, and now workers can enjoy these benefits sooner.

Temporary non-immigrant visa holders will be able to change jobs while waiting for green card approval. If a worker receives a promotion or change in job title the lengthy green card process won’t have to start over again. This allows foreign workers to advance their careers faster and with greater ease. These changes will benefit the economy and increase the attractiveness of working in the United States.

H-4’s Ability to Work
Main proposal:

  • H-4 visa holders, spouses of H-1B visa holders can obtain work

Currently H-4 visa holders cannot work in the United States. This proposed change could greatly benefit families coming over the United States. Families may now have the ability to benefit from duel incomes, increasing their wealth and increasing the attractiveness of the H-1B visa. Allowing spouses to work may make the decision to travel to the United States easier on families now that spouses will not have to completely give up ability to work.

L-1BApprovals and Specialized Knowledge
Main proposal:

  • More specifically define “specialized knowledge” to decrease denials of L-1B visas

L-1B visas are granted to workers that possess an advanced knowledge specific to his employment. However, the term “specialized knowledge” is not well defined, which has led to several L-1B denials. The DHS has been consulting with the State Department for the past couple of years in an effort to update the definition of “specialized knowledge.”

Providing additional insight to the meaning of “specialized knowledge” will allow employers to more adequately find employees that fit under this visa classification. This can save employers considerable time and money filing L-1B visas that are subject to denial because the employee’s skill set doesn’t meet the definition of “specialized knowledge.”

Optional Practical Training (OPT)
Main proposal:

  • Students on OPT can extend stay for longer periods of time

OPT is a beneficial tool for students, specifically in the fields of science, technology, engineering and math, to work in the field that they are studying. This allows students to gain practical experience and be more attractive to employers.

Extending the length of stay on OPT will allow employers to employ a student longer without students having to go back to his home country. This will allow students to gain more skills and become more marketable by gaining considerable practical experience working in the United States.

PERM
Main Proposal:

  • Full revamp
  • Modernize PERM system
  • Foreign entrepreneurs subject to “parole” system

Obama proposes the PERM system undertake a full revamping to modernize the PERM system and modernize outdated practices. This could make the PERM process easier and quicker to move through.

Foreign entrepreneurs that invest a certain amount of money in the United States will under a new “parole” system. This could benefit the United States economy by bringing in more money.

ContactThe Law Office of Sweta Khandelwaltoday to discuss how the Immigration Accountability Executive Action and how it could affect your employment-based

Cited Sources:

AILA’s Take on President Obama’s “Immigration Accountability Executive Action” Plan, American Immigration Lawyers Association, November 24, 2014

DACA Expansion and Creation of DAPA- Things to Know

Reforms are expected to be in place for undocumented foreign nationals applying for DACA (Deferred Action for Childhood Arrivals), and parents of United States Citizens or Legal Permanent Residences applying for DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). As with all immigration changes, it’s important to educate yourself and be aware of timelines, requirements for applying, and the potential scams that often happen when such relief measures are announced

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DACA is an immigration policy available to certain people who came to the United States before the age of 16 and lived in the United States continuously for a certain period of time. DACA stops removal proceedings against the individual and allows work authorization for those who qualify.

As part of President Obama’s Executive Action on Immigration Reform announced on November 20, 2014, DACA will expand its eligibility requirements to include more people There will also be a new category created called DAPA.

The proposed changes to DACA were scheduled to take place in February of this year. However due to a federal court order the expansions have not been implemented yet. USCIS expects to begin accepting applications for DAPA in May of 2015.

Obama’s proposals include an increase in the group of people eligible for DACA. Previously DACA included those who entered the United States before the age of 16 and continued to live in the United States since June 15, 2007. Now DACA will include those who entered the United States before age 16 and lived here continuously since January 1, 2010. DACA will also expand the period of work authorization from two years to three years for those who qualify.

DAPA, which is expected to start accepting applications this May, is a new category to protect parents of United States Citizens or Legal Permanent Residence. Those approved for DAPA will be eligible to live in the United States temporary without the risk of deportation. Alike DACA, DAPA applicants may also be considered for work authorization.

While these changes are exciting and will benefit many families it is important to take the appropriate precautions to ensure your application is filed correctly. Those applying for DACA may be in a vulnerable position, in fear of deportation or other consequences. While childhood arrivals that reside in the United States may qualify for DACA, applicants should be careful to ensure they qualify and take steps to file their application correctly. Consulting an attorney is a good idea for those applying for DACA or DAPA status to receive legal advice specific to your individual situation.

American Immigration Lawyers Association (AILA) has issued a consumer warning listing 5 things to be aware of in regards to the changes to DACA and DAPA. AILA recommends getting legal advice when applying for DACA or DAPA. DACA and DAPA can be a confusing process and with the new changes in play, this may create additional confusion. An attorney can help you navigate the complicated legal process.

AILA’s warns applicants to take note of 5 things in regards to DACA and DAPA:

  1. DACA expansion and DAPA cannot be applied for yet.
  2. There are additional requirements for DACA and DAPA, not everyone will qualify for these classifications. Solely being a childhood arrival or a parent of a United States Citizen or a Lawful Permanent Resident is not the only requirement.
  3. Get legal assistance before applying to either DACA or DAPA.
  4. Make sure all the information is true and correct, submitting the wrong information can prevent you from gaining DACA or DAPA.
  5. There are many scams out there, beware of them and avoid them.

Consult the Law Office of Sweta Khandelwal today to discuss the expansion of DACA and the intricacies of applying for DAPA. Ms. Khandelwal is an immigration attorney located in Silicon Valley with over 10 years of experience in the field.

Cited Sources:

Executive Actions on Immigration, March 3, 2015, USCIS

Consumer Alert on DAPA and DACA, February 12, 2015, AILA

Consideration of Deferred Action for Childhood Arrivals (DACA), March 10, 2015, USCIS

You May be Able to Request DAPA. Want to learn more? January 30, 2015, USCIS





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