Trump administration red tape tangles up visas for skilled foreigners, data shows

According to a report by Reuters, the Trump administration has been making it significantly more onerous for skilled foreigners to work in the United States.  The report explains that the new administration has been challenging visa applications on a notably more frequent basis than at almost every point during the Obama Presidency.  A primary reason for the increased inspections of the H-1B visas is President Donald Trump, who has called for reform to the visa program.  Specifically, the President has asked that the visa program is altered so that it favors the highest paid workers, but has not followed through on any such reforms.

Recent data provided by the U.S. Citizenship and Immigration Services (USCIS) reveals that between January and August of 2017, the agency issued 85,000 requests for evidence for H-1B visa petitions. This comes as a 45 percent increase compared to the same period last year.  The data also highlighted that in the same period, H-1B visa petitions increased less than 3 percent.  Finally, this new information also found that the rate of requests for evidence (RFEs) issued in 2017 was at a significantly higher rate compared to during any point in the Obama era, except for the year of 2009.

This new data trend is likely to be perceived positively by Trump supporters who back the President’s uncompromising stance towards immigration.  Many of his followers claim that the presence of skilled foreign workers undermines the ability of the American worker by replacing them with underpaid employees from other countries.  In contrast, major tech companies, universities, and hospitals say otherwise.  Instead, they state the H-1B visas allow them to find candidates for extremely specialized jobs for which there are occasionally very few qualified Americans.

What is the purpose of the H-1B visa?

The purpose of the H-1B visa is to enable in general, foreign workers who have bachelor degrees or higher to work for up to three years at a time, in several different sectors of the economy. Typically, foreign workers tend to work in the areas of technology, healthcare, and of course, education.  In fact, the USCIS found that during 2016, Amazon, Google, Apple, Intel, Oracle, and Facebook were primary users of the H-1B visas.  The RFEs challenge the original reason for the visa application and contends that the evidence does not support approval of the H-1B petitions.  While the Obama administration did not issue as many requests for evidence as Trump’s, their numbers were also in a similar range.  Specifically, the Obama administration issued approximately 59,000 requests for evidence from January through August 2016.

For many years, immigration attorneys have criticized the challenges posed to the high-skilled employment visas.  However, immigration attorneys are saying they are witnessing a newfound trend in the Trump era.  In addition to issuing RFE’s more frequently, the new administration has also made it a point to target entry-level jobs offered to skilled foreigners.  However, attorneys do not agree with this, as they say, it is contrary to the laws that govern the H-1B visa, as it permits visa holders to take entry-level jobs.

Multiple attorneys are viewing this growth in the requests for evidence and focus on entry-level positions as a covert campaign lead by the Trump administration against the H-1B visa program. More specifically, many attorneys are saying that this is a covert campaign being run in the absence of public regulatory changes or Congressionally passed changes, which could be debated and decided publicly.

Terminating ambiguity

Partners HealthCare is one of the most well-known healthcare systems in Massachusetts. It includes, Massachusetts General Hospital and Brigham and Women’s Hospital, two prestigious teaching hospitals for Harvard Medical School.  Unfortunately, this year Partners has received more than 50 requests for Evidence’s from the USCIS.  This is a significant increase compared to last year, where the healthcare system only received less than 15 requests for evidence for a similar number of H-1B petitions.  These figures come from Partner’s immigration attorney, Anthony Pawelski.

In their request for evidence, the USCIS questioned the relationship between the hospital and the university, despite their applications including adequate proof of their non-profit status and affiliation.  This status came about through a 1948 agreement between Harvard Medical School and the hospitals.

It is not yet apparent how growth in the request for evidence will alter the number of visas distributed this year.  However, during the year of 2016, the USCIS authorized 87 percent of H-1B petitions.  Conversely, by June of this year, the agency had only approved 59 percent of H-1B petitions. However, this is not a complete statistic, as a majority of requests are processed towards the end of 2017.

Lawmakers from both the Democratic and Republican party have scrutinized H-1B visas for various reasons.  Many critics say they allow certain companies to use the program to find foreign candidates for junior level IT jobs and replace American workers.  To prevent this from happening, legislators from both the Republican and Democrat parties have introduced legislation this year to alter the use of the visa.

During April, Trump sponsored a review of the H-1B program aimed to ensure that the visas were being issued to the most skilled or highest paid applicants.  While the actual executive order did not make a change, it did guide several agencies to suggest reforms.  Director of government relations at the American branch of the Institute of Electrical and Electronics Engineers (IEEE), Russell Harrison commended Trump on this move.  In his comment, Harrison explained that many companies are misusing the H-1B visa program and that it was good the administration has become aware of this abuse and are moving to solve it.  Harrison’s group, the IEEE is not in favor of the H-1B program but is in favor of giving more high-skilled foreigners employment-based permanent residence.

After reviewing hundreds of request for evidence’s, the American Immigration Lawyers Association ( AILA) found that RFEs dealing with entry-level positions say one of two things.  The requests say that either the job is too complicated and thus demands a higher salary or that the job does not count as a specialty as noted in the guidelines of the H-1B program.

Increased requests come with an increased price

An entry-level position is a position that typically targets recent university graduates, who have little to no work experience.  Jobs in this category pay a “Level 1,” wage, which is described as the lowest of the four tiers.  The spokesperson of the USCIS says that a request for evidence is appropriate if they find that the salary does not match the duties of the position.  However, the data provided by the USCIS did not specify the occupations the requests challenged or the reason for the challenges.

Lawyers disagree with the purported reasoning of the USCIS, which is that specialty jobs cannot be entry-level.  In a counter-argument, lawyers refer to young doctors and engineers, who do not have much work experience, but they have spent several years learning technical skills.

While these requests for evidence can be found in all industries, a review by AILA revealed that those who were software developers and computer system analysts were contested more frequently than other positions.

Established companies in the Silicon Valley either chose not to comment or did not respond to a request for comment on the amount of requests for evidence that they had been receiving.  A request for evidence can significantly increase the legal fees that come with each H-1B visa, by almost fifty percent, many attorneys say.  Government associated fees for H-1B visas are notoriously high, running upwards of two thousand five hundred, dollars.  Employers who file multiple H-1B petitions each year can get discounts on attorneys fees due to the volume of cases and duplication of relevant work, and as such may pay two to three thousand dollars for H-1B cases.  Other employers who do not have such high volume or have complex petitions can pay much more than this attorneys fees on such cases and even more if they receive complicated RFEs, that often double or triple the work required from the attorneys.

An attorney with a prominent immigration firm, Berry Appelman and Leiden LLP, explained that one of the firm’s customers, a medium sized technology company, was given six requests for evidence’s from the USCIS, in one day. Additionally, the attorney, Jeffrey Gorsky, also said that between late 2015 and end of 2016, the company only received only one request for evidence on an H-1B visa petition.

 

Beyond the Wall: The New Administration’s Impact on Global Immigration (Public International)

Many lawyers and their clients are understandably concerned about changes that will occur in the immigration system under Donald Trump’s term as U.S. President.  This panel will outline how the Trump Administration and a Republican-controlled Congress could impact the current U.S. immigration structure, particularly as it relates to employers.  Our esteemed panelists will address crucial questions, including (a) Which of the President’s plans would have the most impact on business immigration policy? (b) What changes could the new Administration enact via Executive Orders and regulations without Congressional action? (c) Will Congress pass any of the business immigration-related legislation that has been introduced? (d) What would be the immigration consequences of NAFTA renegotiation or withdrawal? (e) With such an increased focus on enforcement and removal (deportation), which of these changes are most likely to affect employers? (f)  What are the effects of the Administration’s actions on immigration-related rule of law and human rights issues?  (g) Is there anything we can do to educate the new Administration on the impact of shifting immigration policies on the global economy?

 

Committee Sponsor: Immigration and Naturalization Committee

Panel Chair: Program Chairs with e-mail addresses: 

Gabrielle M. Buckley, Vedder Price P.C., Chicago, Illinois, (gbuckley@vedderprice.com)

Mohammad A. Syed, Syed Law Firm PLLC, Washington, DC (msyed@syedfirm.com)

Hedwin Salmen-Navarro, Salmen Navarro & Lavergne, P.C., New York, NY (hsalmen@lawsnl.com)

 

Moderator:

Gabrielle M. Buckley. Vedder Price P.C., Chicago, IL

 

Speakers: 

  • Ira Kurzban, Kurzban Kurzban Weinger Tetzeli & Pratt P.A. and Adjunct Professor of Law at University of Miami, Miami, FL
  • Cyrus D. Mehta, Cyrus D. Mehta & Partners, PLLC (CDMP), New York, NY
  • Amy Nice, former Director of Immigration Policy, U.S. Chamber of Commerce, Washington, DC 
  • Mohammad A. Syed, Syed Law Firm, PLLC, Washington, DC

 

ABA Section of International Law

2017 Fall Meeting, Miami, Florida

10.27.2017 JW Marriott Marquis Miami – 9 am – 10:30 am

To Register, Click Here

USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants

Interviews will soon be required for Employment-based Adjustment of Status and Derivative Asylee and Refugee Status.

Effective Oct. 1, USCIS will begin to phase-in interviews for the following:

• Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).

• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.

Changes due to Trump’s extreme vetting plan

These changes are taking place due to information provided in the President’s Executive Order (“EO”) related to the travel ban that was initiated in January 2017 but revised later in March 2017.  In the revised EO it was stated that a uniform baseline was required for vetting and screening and there would be no waivers such as those related to in-person interviews.  The USCIS has now become the focal point for implementation of the EO.

Effects of eliminating waivers

An immediate effect will be longer waiting time for receiving the results of a green card application.   As more interviews will be taking place, there will likely be more delays in arriving at decisions.  The USCIS has revealed that it is not only the permanent residency applicants and the families of refugees and asylees that will be affected, but other categories which have not yet been revealed will be affected too.

What is the role of in-person interviews?

The USCIS has stated that their aim is to prevent fraudulent claims and identify any possible security threats.  It seems these earmarked categories aren’t normally identified as security threats or aren’t normally engaged in fraudulent activities.  Also most of the individuals involved are already living in the U.S. and are subject to fingerprint screening and security checks already.  In addition, the new I-485, Supplement J, which has been released is designed to ensure there is a job offer that is bona fide.  These measures make the interview both unnecessary and unwieldy given the present checks and balances present.

What is not affected by this announcement?

It will not affect employment authorization documents (“EADs”) and I-140 petitions.  So the change should not have any impact on work authorization in the U.S.  However if this interview requirement is extended into other categories there may be a greater impact overall.

Effect on derivative refugees and asylees

The obvious effect is delays in getting the green card.

Preparing for the in-person interview is not always easy

The applicant will be required to have a full understanding of why he or she is eligible for the benefit and what the benefit actually is.  The employment based applicant will be asked to submit a description of his or her employer, the position which must include job duties, where the job is located and how much is going to be paid as well as any required credentials to back-up the application.  A refugee’s family member or asylee will be required to explain their relationship with their family member and explain how he or she was granted the refugee or asylee status in the first place.

In order to ensure success in an in-person interview, the applicant should really practice the interview session with someone who is familiar with the contents and questioning methods used in such situations.  There may even be language barriers to consider, especially in the refugee and asylee category.

The E-2 Investor Visa Most Popular U.S. Entrepreneur Visa Category Today

The U.S. has an agreement with a number of countries called the commerce and navigation treaty. It is business people from these countries who may qualify for the E-2 Investor Visa. Up to date this visa has been particularly successful as an option for U.S. franchises as it has given them the chance to attract investment from overseas.

Requirements for applicants for the E-2 Investor Visa

In the first instance the investor needs to prove that there is a current commerce and navigation treaty in existence between the U.S. and the investor’s country of citizenship.

This information can be found here.

Those who possess dual citizenship with an eligible country may also be able to file an application for an E-2 visa.

Before beginning the E-2 application process, the potential investor must prove that any money that has been set aside for the investment originated from either a citizen or citizens of the eligible treaty country.  Defining the nationality of the investment can become quite tricky if it’s not originating from an individual but a company. When it comes to this situation the investment fund’s nationality is determined by what the nationality is of most of the company’s owners.

On making the E-2 visa application there is a risk that the investor needs to take and that is he or she has to provide evidence that the money has already been invested. Before any investment can take place all the necessary arrangements for setting up or controlling the business must have been made as well.

A business with a growth potential is favored for an E-2 investor visa

Not everyone runs a business with the intention of making huge profits beyond what is necessary to support a family. However, applicants for an E-2 visa have to prove that the business they intend to invest in has the clear potential to grow into a far bigger concern. This means a 5 year business plan must be presented which includes:

  • The type of business and how it intends to operate
  • How the business is going to collect revenue
  • How it will add value to the U.S. economy.

Typically, when it comes to making an investment the E-2 visa requirements state that the money set aside for this type of investment must be ‘substantial’ in relation to the overall value of the business.  A potential E-2 investor visa applicant should be looking at having funds available to invest that equate to at least two-thirds of the cost of the business. So a business that costs $30,000 should attract an injection of $200,000 approximately before the E-2 visa can be considered.

Active participation in the business is a requirement even though this doesn’t mean other people can’t be hired to run the day by day operations.

The E-2 investor visa attracts a high approval rating

One of the main benefits of the E-2 investor visa is that it has a 93% approval rating. This is significantly higher than other visa categories like the L-1 or H-1B. The statistics indicate that over the 5 years up to 2015 there has been a 61% increase in the issuance of this visa type which attracted 41,162 approvals in 2015. Investors who have achieved approval are spread across the globe but in 2015 Japanese business investors received the highest number of approvals at 12,172, but in recent years investors from Latin American countries such as Argentina are seeing more approvals.

What businesses may be most suited to an E-2 investor visa?

Businesses that offer franchise opportunities vary from fast-food outlets like McDonalds which is the largest global franchise provider, to real estate businesses like Century 21 and hotel chains such as Choice Hotels. These are considered to be good investment opportunities for E-2 investor visa applicants.

The investor’s passport may help too

If your country does not have a treaty agreement with the U.S., like Venezuela and Brazil, this still might not exclude you from applying for an E-2 visa if you have dual citizenship and a passport issued to you by an eligible country.

What about the E-2 visa and President Trump?

So far, the E-2 investor visa requirements fit in well with President Trump’s announcements that people entering the U.S. should be able to support themselves. So this category has not been targeted in quite the same way as the H-1B and student visas. However, the President has an executive order currently in place to ensure immigrants are adhering to the requirements laid down by their assigned visa. This could mean inspectors may visit E-2 businesses more often.

New Hires at Syed Law Firm, PLLC

Syed Law Firm is pleased to announce the addition of two new staff members:

 

Ysabelle Reyes- Law Clerk

Ysabelle supports clients pursuing U.S. employment-based visas and naturalization. Ysabelle also has experience in family-based immigration through her volunteer work at a local nonprofit that provides legal aid to low-income immigrant families. Prior to joining Syed Law, Ysabelle supported lead attorneys in complex cross-border aircraft financing transactions as a legal assistant at a boutique firm in Washington, D.C.

Ysabelle holds a bachelor’s degree in Management Economics from Ateneo de Manila University and a Paralegal Studies Certificate from Georgetown University. She also attended the University of the Philippines College of Law. She is currently a second-year law student at Harvard University and will be working remotely from Cambridge, MA.

 

 

 

 

 

 

Luciana Jhon- Legal Assistant

Luciana is a graduate from Florida International University where she pursued a major in Political Science and a minor in International Relations with a concentration on Latin American and National Security studies. Currently, she is also interning at the Washington Office on Latin America, a nonprofit research and advocacy organization working to advance human rights in the Americas.

Previously, Luciana worked at an immigration law firm in Miami handling cases relating to family-based adjustments, asylum and deportation. She also interned on Capitol Hill under the Congressional Hispanic Caucus Institute and worked as an undergraduate research assistant conducting regional research on Latin America and the Caribbean. Luciana hopes to continue to develop her skills and gain knowledge in public policy in order to positively impact underrepresented communities. In the future, she hopes to attend law school and work as an attorney for a non-profit organization.

President Trump, Senator Cotton, and Senator Perdue Introduce The Reforming American Immigration for a Strong Economy Act (RAISE Act)

President Trump, Senator Cotton, and Senator Perdue Introduce the RAISE Act 

Today, Senators Tom Cotton and David Perdue will join President Donald Trump at the White House to introduce The Reforming American Immigration for a Strong Economy Act (RAISE Act). The RAISE Act is aimed at creating a skills-based immigration system that seeks to make America more competitive, raise wages for American workers, and create jobs.  The intent is to give Americans “a raise.”

Watch live at 11:30 am EST August 2, 2017

https://click.mail.whitehouse.gov/?qs=ff97cb9f2efe519166ea15ef52970893e8dd193b629cc4658a71178ca5537b9dd629cb1b0af5f7307e81f38736a7ee9564d8501d63556430

https://www.whitehouse.gov/live/president-trump-makes-announcement-senator-tom-cotton-and-senator-david-perdue

 

 

 

Supreme Court Definition of “Bona-Fide” Causing Confusion

The Trump administration’s travel ban affecting citizens of six majority Muslim countries and refugees from anywhere has been allowed to go ahead in revised form, at least temporarily, by the U.S. Supreme Court, but the decision has not only caused confusion but has also provoked unrest, protests, and court actions, albeit in more muted form compared to what happened when the original travel ban was first announced. The Supreme Court is expected to hear oral arguments on the travel ban this fall.

The original ban affected all citizens from Iran, Libya, Somalia, Syria, Sudan and Yemen for 90 days and all refugees from anywhere for 120 days. The new temporary revised ban which went into effect at the end of June allows only citizens from these six countries and refugees who have a genuine “bona-fide” relationship with an American citizen or entity to enter the United States.

The problem is that the definition of the term “bona-fide” is unclear. The lack of clarity is already causing distress and confusion.

The “bona-fide” definition currently includes “close relatives” of U.S. residents or citizens, those who already have a job lined up, or those who will enroll in a course of study at a college or university. Refugees who arrived in the United States before July 6th were allowed to enter the country. Both definitions leave a lot to be desired.

Government officials contend that the definition of “close relatives” comes from the 1965 Immigration and Nationality Act. Opponents of the ban argue that the administration’s new definition of “bona-fide” relationships does not seem to be in step with the Act. Parents-in-law, for example, were not regarded as “close relatives” under the Act, but they are considered as “close relatives” under the travel ban. However, fiancés and fiancées are “close relatives” under both the Act and the travel ban.

Commentators say that the lack of clarity means that there is likely to be chaos again at the airports when travelers, immigrants and refugees arrive, as border agencies will be struggling to interpret the rules as they stand.

The new version of the ban states that siblings, parents, children, sons and daughters in law, parents in law, fiancés, and fiancées of legal U.S. residents and citizens will be allowed to enter the United States. Grandparents, grandchildren, brothers or sisters-in-law, cousins, aunts, uncles, nephews and nieces will not be considered “close relatives.”

Lawyers for Hawaii challenged the government’s definition of “close relatives” by asking a federal district court judge to clarify the Supreme Court ruling. The judge, however, declined to do so, stating that such clarifications should be obtained from the Supreme Court.

As for the refugees, there is doubt about the fate of those refugees who have already been accepted for travel to the U.S., but who could not meet the July 6th deadline.

According to the Trump administration, any citizen of one of the six affected countries or refugee is encouraged to contact consular officials in the country of origin. These consular officials will be given the authority to make decisions about the validity of entry, notwithstanding the ban, on a case by case basis.

Immigration Form I-485 Has Been Revised and Simplified

A new, easy-to-understand version of form I-485 “Application to Register Permanent Residence or Adjust Status” has just been released.

In some cases, applying for a US visa requires filling out not just the application form, but supplemental forms as well. Many of these forms aren’t necessarily that easy to follow, meaning mistakes can be made causing unnecessary delays to the application process. For this reason, the USCIS has decided to revise the I-485 form to make it easier to complete.  It has also revised Form I-485 Supplement A and Form I-485 Supplement J, which includes the form filling instructions for relevant applicants.

Who uses this form?

This form is designed for those living in the United States who wish to adjust their status, which, once completed satisfactorily, means they can become lawful permanent residents. Once lawful permanent residence status has been acquired, the next step is citizenship.

60 day grace period until August 25, 2017

USCIS is prepared to accept either the 01/17/17 or the 06/26/17 editions of Form I-485 and I-485 supplements A and J up until August 25, 2017.

What are the changes?

  • Clearer navigation to the various parts of the form.
  • The questions flow better and the new formatting makes it clearer to understand and follow.
  • Clearer instructions are provided that relate to an applicant’s unique situation.
  • The questions about biographic information (Form G-325A) have been included in the revised Form I-485, so it will no longer be necessary for applicants to complete a G-325A as well.
  • 27 different immigrant categories are included, which means applicants can more easily identify the immigrant category which applies to them.

There are some questions that have been added that help a USCIS officer more easily assess the applicant’s eligibility and acceptability.

It is expected that these updates will make the whole approval process faster and more efficient, as there will be fewer mistakes and requests for evidence.

What looks the same on the form?

Form I-485 and its instructions do not look the same as the original versions, but the actual process for filling in Form I-485 and Supplements A and J have not changed. Applicants must however still submit the paper applications to the location listed in the instructions on the form.

The First Meeting with an Attorney – The Consultation

Whatever the reason that you have decided to talk to an attorney, your first meeting is important because it sets the scene for any continuing communication and relationship. If you have never needed to use an attorney before, the description below should help to fill you in on what you can do to make the meeting proceed more smoothly and what sort of questions you should ask.

The first step comes before the consultation when you contact the attorney’s office by phone.  He or she will ask a few questions and arrange for a consultation.  Be sure to ask if there is any charge for the consultation at this point so you know whether you have to pay at the time of the visit.  Some attorneys charge and others don’t depending on their area of law.

You do not have to retain the attorney simply because you have had a consultation.  If you want to talk to another, that’s fine. It’s like getting a second opinion before an operation or advice about a medical procedure.

Preparation for the consultation

Before you go to the first meeting, make sure that you are prepared.  Jot down the key points that you want to make and a list of questions you want to ask.  Take a pen and notepad or an electronic equivalent if that suits you.  Dress as if you are going to a business meeting or seeing your bank manager. Be on time, and check that you have copies of any documents that you think you may need to show to the attorney—it’s best to have more documents than you think you need than too few.

At the meeting

The attorney will probably ask for brief details about your case or dispute and then proceed to ask questions and explain procedures.

When it comes to explaining your case or describing details about your situation, be honest.  The attorney is bound by the attorney-client privilege to not divulge anything you say unless you suggest that you may be about to commit a crime, which fact the attorney may then have to pass on to the police.  Attorneys are good at judging character and will have a good idea whether you are withholding information from them which is relevant to the case or being deliberately dishonest.

Ask about the attorney’s fee structure and whether there is a prepayment of a retainer that would need to be paid upfront should you decide to use the attorney’s services and he or she agrees to represent you.  A retainer is an initial amount that is billed against as the attorney works on your case.  A retainer is similar to adding a balance on a pre-paid calling card.  You pay for only the minutes you actually use.  If the amount is eventually exhausted it is usually expected that another payment will be made.  In some cases, e.g. personal injury law, the attorney may work on a contingency fee basis.  This means that there are no upfront legal fees and the fee will be paid if and when a compensation payment is made.  This may also be the case for other examples of litigation where you expect a payment if your case is won with the help of the attorney.

Find out how the attorney bills, whether it is upfront, at a regular date or at the end of the project.

What next?

The attorney will most likely advise you as to what you can do next and what you may need to send in to the attorney.  This may mean additional information or documents that are needed so that the attorney can understand the issues more clearly.  There may be other forms of evidence that the attorney would like to have made available or contact details of people who may be relevant to your case.  In many cases, time could be of the essence and the sooner you and the attorney act, the more likely that it will proceed to a satisfactory conclusion.

Make sure that you agree on how you will communicate after the consultation meeting, whether it is by phone, email or some other method and how often the communication should be.  It is sensible to keep communicating regularly anyway so that you know what is going on.

You need to feel comfortable with your attorney’s ability and attitude just like the attorney needs to feel that you are being as open and complete as possible about your case.  As has already been mentioned, you are not stuck with the attorney you have had a consultation with, but it doesn’t make sense to engage the services of more than one attorney at the same time on the same issue.

Some questions that should be asked at any consultation

  1. How long have you been practicing this field of law?
  2. What sort of cases have you had which are similar to mine?
  3.  What was the outcome in these cases?
  4. How long did it take to resolve some of these cases?
  5. What do you think my chances of resolving the case are?
  6. How do you charge for your services?
  7. How much do you think it might cost for the whole project?
  8. Do you need a retainer?
  9. What documents o further information do you need to help you assess the case?
  10. What should I do now, if anything and when should we contact each other again?

 

The No-Objection Pathway for a J-1 Visa Holder to Apply for a Home Residency Waiver

The following no-objection pathway applies to those exchange visitors who are in the United States lawfully on a J-1 visa. At present, unless the United States Citizenship and Immigration Service (USCIS) grants a waiver for a specified reason, J-1 exchange visitors must complete a two year period of residence in their own home country before changing their immigration status. This period of residence is called the 212(e) two-year foreign residence rule.

The barriers to this requirement can be waived under certain circumstances. These include:

  • obtaining a no-objection statement from your own home government;
  • proving that you face persecution of some kind if you had to return;
  • a federal agency showing interest in you staying in the U.S.;
  • if denial of a waiver would cause exceptional hardship to a child, or wife who was a legal U.S. citizen or resident.

The easiest of these four ways that a waiver might be granted is the first one, obtaining a no-objection statement from your home government. Such a statement is basically a formal way of saying that your government will not put any obstacle in your path if you wish to remain in the U.S.

Every country has different procedures that it uses to establish whether it is prepared to issue a no-objection statement, so it is important that if you decide to take this route that you find out exactly what your own home country’s government’s procedures actually are. Some countries, such as India, for instance, have a particularly bureaucratic and long-winded method to follow before a no-objection statement is released and some countries categorically refuse to issue any no-objection statement at all.

Also note that some categories of J-1 exchange visitor, such as foreign doctors who came to the U.S. to further their medical training, will not be granted a waiver by the USCIS.

How to go about applying for a waiver using the no-objection

There are two different U.S. federal agencies that have a say in granting you a home residency waiver. Both agencies must agree in turn. The first you have to deal with is the Department of State (DOS) and the final one is the USCIS. It is quite possible, although not likely that you will have your waiver application accepted by the DOS only to find that it is turned down by the USCIS. Once this happens, you cannot appeal. If you do decide that you would like to change your visa status you will have no alternative to completing the 2 years back at home.

The first step is as mentioned before you check out your home country’s government’s procedure for providing a no-objection statement carefully first. There may be things you have to do that can smooth the process out later on. Your own government may not wish to provide a no-objection statement, for instance, if you owe your government money, a criminal charge has been laid against you while you were outside the country or you have yet to complete military service.

The second step is to complete an online J-visa waiver application and send it to the DOS. This is form DS-3036 and must be completed electronically as it contains a unique bar code without which your application for a waiver will be rejected. You fill it in online, print it off, and then send it off in the mail to the DOS together with a check or other payment and supporting documentation. On receipt of the form, the DOS generates a case number, which is basically a formal confirmation that your application is in the pipeline.

The third step is to complete a “Statement of Reason,” print it off and send it t the DOS. You cannot complete this step until the DOS has received your DS-3035 and issued you with a case number. The “Statement of Reason” is found on the same DOS website as the J-visa waiver application form. You don’t need to say anything particularly elaborate here. Just stick to the truth and keep it relatively short and simple.

The fourth step is to request a no-objection statement from your home country’s government. You will already have found out how to d this. It will probably mean filling in forms that your own country issues, paying a fee and also providing the DS case number you have already received. Depending on your citizenship, this procedure may vary somewhat. Once the statement has been issued by the relevant ministry or department in your own country it will be sent directly, most likely via your own country’s embassy, to the DOS Waiver Review Division. You are not allowed to obtain it yourself and send it on to the DOS.

What comes next?

Once the no-objection statement has been received by the DOS, they will take a few weeks (typically between 4 and 9) to make a decision about whether they approve of your reason for applying for a waiver. If they recommend your waiver application they will then send this n t the USCIS and send you a copy at the same time. While they are reviewing your waiver application, you are able to track progress using your case number and the DOS website.

The USCIS is the final decision maker in the waiver application process. However, they do not usually spend much time reviewing a recommendation by the DOS and in most cases will approve the application and grant you an I-612 waiver approval. As has been already mentioned, if approval is denied, you cannot appeal the decision although you may be able to apply all over again if you think you fit another category in the home residency requirement waiver list.

Act on your immigration status as soon as you have a copy of the DSOS’s recommendation

Note that as soon as you are sent a copy of a DOS waiver recommendation, you will need to think about your immigration status. You can start applying for a change of status as soon as you get the recommendation copy. The USCIS will still make a decision about the waiver first and then if the waiver is granted act on the change of status you apply for.

As in all cases of U.S. immigration applications, it is best to seek out an experienced immigration lawyer to provide you with detailed information and help in processing your home residency waiver.

EXPERTS IN IMMIGRATION LAW