Transcript Introducing the strategic and cohesive Fragomen brand

February 17, 2010
US Corporate & Business Immigration Law
Presented to
German American Business Association
Whittier Law School
Costa Mesa, California
David Hirson, Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
18401 Von Karman Ave., 2nd Floor
Irvine, CA 92612
Office: +1 949 261-0209
Direct: +1 949 660-3504
Fax: +1 949 261-2821
Email: [email protected]
www.fragomen.com
Rico Fontana, Senior Manager IHR –
Global Immigration Lead
Fluor Enterprises, Inc
949-349-7803
[email protected]
1
Topics for Discussion to Include:
• U.S.
Immigration Law, 2009 updates
• How the economy has and may impact the immigration
law and U.S. businesses working with immigrants of all
levels
• The impact on business
• CIR – Comprehensive Immigration Reform in 2010?
• Germany Specific Issues
- Visa Waiver Program
- ESTA
- E-1 / 2 Treaty Visas
2
About Fragomen
• Single
Focus
- Largest firm in the world exclusively dedicated to providing
global immigration services
- Resources and technology designed specifically for immigration
services
• Scalable
- 36 offices in 14 countries, 250 attorneys, 800+ professionals
- Strategic network of 100+ in-country co-counsel
• Partnering
- Custom representation tailored to our clients’ needs
- Flexible service model
3
Global Coverage
Canada
United Kingdom
France
Spain
United States
Russia
Belgium
Germany
Switzerland
Italy
Japan
South Korea
Israel
Mexico
China
UAE
India
Costa Rica
Venezuela
Thailand
Singapore
Taiwan
Hong Kong
Malaysia
Brazil
Peru
Australia
Chile
South Africa
Argentina
Fragomen Office
Core Strategic Partner
Planned Office
4
New Zealand
Recognition
• Corporate
Immigration Law
Firm of the Year – 2005,
2006, 2007, 2008, 2009
• Best Lawyers - Ranked #1 in
the United States in
Immigration Law
• Chambers US and Chambers
Global 2008 - Highest
possible ranking in
immigration category
• UK Lawyer top ranked
Immigration Firm
• Professional Recognition
5
Involved Government Agencies
Department of Homeland Security:
1. United States Citizenship and Immigration Services
- USCIS (formerly the Immigration &
Naturalization Service – INS or BCIS)
2. Immigration & Customs Enforcement – ICE
3. Customs & Border Protection – CBP
4. CIS Ombudsman
• Department of Labor
• Department of State (DOS):
- U.S. Embassies
- U.S. Consulates
•
6
Basic Concepts
• Immigrants
• Dual
vs. non-immigrants
intent
• Petitions, visas, & status
• Quotas & chargeability
• Preservation of family unity
• Priority workers
• Preference classification
7
Nonimmigrants
• Coming
• Retain
• Dual
to the U.S. temporarily
residence abroad
intent - only for H’s and L’s
• “Alphabet
8
Soup” - A-V
Immigrants
• “Green
card holders” = “permanent residents” =
“immigrants”
• Coming to U.S. permanently
• Numerically limited
- Visa bulletin
- Priority date
• Can become U.S. citizens after 3 - 5 years
9
Family-Based Permanent Residence
• Immediate
relatives (spouses, minor children &
parents of U.S. citizens)
• Other close family members of citizens or permanent
residents, including:
- Unmarried sons & daughters of citizens (over age
21)
- Married sons & daughters of citizens
- Spouses, children & unmarried sons/daughters of
permanent resident aliens
- Brothers & sisters of citizens
10
Employment-Based Permanent Residence: 2
or 3-Step Process
• Labor
certification PERM (where required)
- Filed by employer on behalf of foreign national
- Processed by U.S. Department of Labor
• Immigrant
preference petition
- Filed by employer
- Self petitioning possible in limited cases
- Processed by USCIS
• Adjustment
of status or consular processing
- Filed by the foreign national & family members
11
3 Steps to a Green Card
1.
Labor certification - PERM
–
–
–
–
2.
filed by employer on behalf of foreign national employee
processed by U.S. Department of Labor (DOL)
DOL regulated test of the local US job market
involves lay-off assessment (of relevant position/location
within the 6 months before filing with the DOL)
Immigrant preference petition (I-140)
–
–
3.
filed by employer on behalf of foreign national employee
based on approved labor certification (Step 1 above)
Adjustment of status (I-485)
–
–
filed by the foreign national & family members
based on approved labor certification and I-140 petition (Steps 1
& 2 above)
NOTE: Lay-off analysis only relevant in Step 1
12
Employment-Based Categories
EB-1:
Priority workers
EB-2:
Advance-degree professionals &
aliens of exceptional ability*
EB-3:
Professional, skilled & unskilled
workers*
Schedule A workers
EB-4:
Special immigrants
EB-5:
Employment creation
(* labor certification required)
13
EB-1: Priority Workers
• Persons
of extraordinary ability
(similar to the O-1 nonimmigrant category)
• Outstanding
• Multinational
• Labor
14
professors & researchers
executives/managers
certification not required
EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability
• Job
requires advanced degree (Master’s & above) or
Bachelor’s degree + 5 years progressive professional
experience
• Labor
certification required
• Persons
of exceptional ability in science, art or business
(labor certification forms filed w/ I-140 petition)
• Waiver
of labor certification when employment is in the
“National Interest”
15
EB-3: Professionals, Skilled Workers, Other Workers
• Most
commonly used, historically highest demand
• Professionals:
position requires bachelor’s degree
or foreign equivalent degree
• Skilled
workers: position requires minimum 2
years experience and/or training
• Other
workers: limited to 10,000
• Labor
certification required in all cases
16
Impact of Termination on Nonimmigrant Visa Status
• Options
available to terminated employees
- Depart U.S.
- Change of status to another visa classification
- Secure position with another U.S. based employer
• Timing
- No “grace period” in the Regulations
- Unlawful presence issues
- Withdrawal of petition
• Particular considerations for H-1B employees
- LCA issues
- Return transportation
• Dependents
17
Immigration Update
I-9 Compliance
• ICE
and DOL audits are on the increase
• Several
criminal prosecutions of employers
• Administrative
fines can be substantial
• Check
on your system of accurately completing and
maintaining the I-9 forms in your company
• Do
self audits or have independent audits by counsel
routinely AND before any inspection by ICE or DOL
• Consider
outsourcing to an I-9 service organization
• USCIS
through the OMB extended approval of Form I-9
to Aug. 31, 2012
• Employers
may use the Form I-9 with the revision date
of either Aug. 7, 2009 or Feb. 2, 2009
18
Immigration Update (cont.)
E-Verify
• On
September 8, 2009, DHS began
implementing a rule that requires certain
federal contractors to enroll in and use the
E-Verify system to verify the employment
eligibility of new employees, as well as
current employees who are assigned to
work on a federal contract.
19
Immigration Update (cont.)
H-1B Audits
• USCIS
Fraud Unit Site Visits Continue
• Over
the past year, employers have continued to
experience unannounced site visits by USCIS’ Office of
Fraud Detection and National Security
• FDNS
conducts site inspections to verify the
information that employers provide in their immigration
petitions.
• Site
visits have focused mostly on H-1B petitions,
though inquiries on other types of cases are possible.
• Some
employers have reported receiving multiple site
visits, each pertaining to a separate petition and
foreign worker.
20
The Impact of the Economy on U.S. Immigration
I. In A Weakening Economy
• Fewer
jobs – Higher unemployment. November 2009
10.2%
• Lower
• Higher
salaries
enforcement
• Restrictive
immigration laws
• No
distinction made between legal and illegal
immigration
• Xenophobia
21
The Impact of the Economy on U.S. Immigration
II. In A Growing Economy
• More
jobs – Lower unemployment.
- 10% in December 2009
- 9.7% in January 2010
• More
jobs for highly qualified individuals
• Higher
• More
wages and salaries
favorable pro-immigrant legislation
• Xenophobia
22
continues
Salary Reductions & Leaves of Absence
for H-1B Employees
• Salary
Reduction
- Labor Condition Application (LCA) obligations
• The higher of the prevailing vs. actual wage = required wage
• Employer must re-file LCA if required wage not met
- Filing of H-1B amendment may be required
• Leave
of Absence, Furlough, etc.
- Does the leave for absence or furlough result in a reduction in salary?
- Cannot “bench” under LCA rules
- Need to update the LCA
- If so the H-1B petition must be amended
23
Changes in Job Duties and Employing
Legal Entity
• Changes
in Job Duties or Job Location
- Job Duties
• If new duties are a “material change”, the
government may need to be notified and petition
amended
- Job Location – typically only relevant for H-1B
employees
• May require LCA posting and/or I-129 amendment
• Other
Visa Categories
- Evaluate whether notice of termination should be
provided to government or other program sponsor
24
Impact on Foreign Nationals’
Immigration Status
• When
is the Employee “Out of Status”?
• Options
available to terminated employees
- Depart U.S.
- Change of status to another visa classification
- Secure position with another U.S. based employer
• Timing
- No “grace period” in the regulations
- Unlawful presence issues
- Withdrawal of petition
25
How does Layoff affect PERM?
• If
Employer has layoffs:
- In the same geographic area; and
- In same or similar position; and
- Of potentially qualified U.S. worker(s)
Then:
• Employer
must wait 6 months after layoff to File new
PERM for these locations and positions
26
When is I-140 “Portable”?
27
–
I-485 pending 180 days
–
“Same or similar occupation”
–
New position is in same or similar occupational
classification
–
Change in position within same employer or to
different employer
–
Priority date an I-140 approval remains with
foreign national employee
I-485 Portability
• Miscellaneous
Portability points
- Geographic area not relevant
- Wage should not be sole factor in determining “same or
-
-
28
similar”
Multinational managers or executives can take advantage
of portability
Foreign national must have new offer of employment at
the time the I-485 is being adjudicated under portability
and must have notified USCIS
If I-140 withdrawn prior to I-485 pending 180-days, no
longer eligible for I-140 portability
If I-140 withdrawn, denied or revoked after I-485 pending
for 180-days, foreign national remains eligible for I-140
portability
Comprehensive Immigration Reform in 2010?
• 2007
House approved CIR, failed in Senate
• Presidential
• The
promised CIR, delayed by Health Care
recovering economy will be a positive factor
• Concerns
about “Amnesty” and “Path to Citizenship”
- Fines - Tax Returns - No Criminal or Immigration Record
• Possible
• Will
Points System replacing Preference System
legal & illegal immigration concepts be unscrambled
• Politically
very sensitive. Xenophobia remains.
• For
2010 CIS may be enacted. There are so many
perceived and actual obstacles delaying the process.
• The
CIR for America’s Security and Prosperity (CIR ASAP)
Act of 2009 was introduced on December 15, 2009.
- Details will be found in the separate hand out
29
B-1 Business Visitors
• Persons
coming to the U.S. in B-1 visa status must
comply with all of the following requirements:
- Enter the U.S. for a limited period of time
- Intend to depart at the end of the temporary period of stay
- Maintain a foreign residence with no intent to abandon the same
- Possess financial means adequate to stay in the U.S. without
working in the U.S.
- Engage solely in legitimate business visitor activities
30
B-1 Business Visitors
• On
foreign payroll
• Activity in U.S. benefits foreign employer
- Business meetings, training, & joint development projects
• Visa
Waiver Program
- 36 participating countries
- 90-day maximum stay
- Must obtain electronic pre-approval before departure for U.S.
- Ineligible for change of status
31
Export Control
• Transfer
of sensitive technologies and the resulting
implications for the hiring, visa processing, immigration
status and deployment of foreign nationals
• Develop
programs for :
- Risk assessment
- Preparation and monitoring of license applications
- Development of compliance management systems
32
F-1 Students
• Academic
studies: elementary through postdoctoral
- admitted for “duration of status” (D/S)
• Full-time matriculated student at approved school
• “Optional Practical Training:” pre- or post-graduation
- total = 12 months; part-time during school year, full-time during
vacations and after graduation; OPT extension available for
some science, technology, engineering, math (STEM) graduates
- need employment authorization document (EAD);
- School endorsed I-20,issued via Student and Exchange Visitor
Information System (SEVIS), a web-based system for
generation of Forms DS-2019 and tracking
- not tied to particular employer
• “Curricular” practical training if part of educational program
- Need letter from school
- School endorsed I-20 (issued via SEVIS System)
33
J-1 Trainees
• Exchange
visitor program
• Categories
include trainees, interns, research
scholars, specialists, students
• Emphasis
on reciprocity, cross-cultural activities,
and orientation
• Some
J’s must return to home country for 2 years
after completion of program or seek waiver of this
requirement
- skills list
- government funding
- graduate medical education
• SEVIS
34
applies
L-1 Intracompany Transferees
• Intracompany
Relationship:
- Parent, subsidiary, affiliate, branch or joint
venture
• Prior
Employment Abroad:
- 1 year within 3 years preceding transfer to U.S.
• Qualifying
Capacity:
- Executive, Managerial (L-1A)
- “Specialized” Knowledge (L-1B)
• Duration:
- L-1A = 7 years
- L-1B = 5 years
35
H-1B Category:
• “Specialty
USCIS Provisions
Occupation” -- Entry level requirement =
minimum Bachelor Degree or equivalent
• 3 for 1 rule -- 3 yrs. experience = 1 yr. of college
• Labor Condition Application (LCA) certified prior to filing
petition
• Six-year maximum stay (can extend beyond 6 years
under certain circumstances - AC-21)
• 65,000 annual ceiling, of which 6,800 are set aside for
citizens of Chile and Singapore
• 20,000 additional visas allocated to holders of advanced
degrees from U.S. universities
• Reasonable costs of return transportation for dismissed
employee
36
Labor Condition Application
• Filed
with U.S. Department of Labor
• Attests to four basic conditions
- Wages
- Working conditions
- No strike or lockout
- Notice
• Wage offered must be the higher of Prevailing Wage or
Actual Wage paid to similarly situated employees
• H-1B dependent vs. nondependent employers
• Public access file
37
E’s, O’s & P’s
E-1
Treaty Trader
E-2
Treaty Investor
O-1 Persons of extraordinary ability
P
Internationally recognized athletes
or entertainment groups
38
PERM Labor Certification Process
• Program
Electronic Review Management
• One standardized system
• Electronic application process
• Strict advertising, recruitment and posting
requirements
• Must obtain prevailing wage determination before
filing
39
Key Aspects of PERM
• Processing
(cont’d)
times vary widely; cases selected for
audit experience lengthier processing time
• Some changes to eligibility standards for foreign
nationals
• Strict recordkeeping and documentation
requirements
• Applications subject to DOL audits based on
predetermined factors or at random
40
Adjustment of Status
• Can
file concurrently with preference petition if
priority date is current
• Immigrant
visa must be available for preference
category and foreign national’s country of birth/
chargeability
• Filed
at USCIS Service Center
- Nebraska or Texas
41
Consular Processing
• Similar
requirements as for adjustment of status
• Some additional documentation necessary (police
clearances, military service certificates)
• Application processed through U.S. Embassy/Consulate
abroad
• Mandatory for certain foreign nationals
42
Changes of Address
• USCIS
notification required within 10 days of change
for principal and all family members.
• File
electronically or in hard copy on Form AR-11.
• AR-11
will not update addresses on pending filings;
must separately notify appropriate USCIS adjudicating
office of change.
43
APPLICATION MATERIALS
• Passport
must be valid for six months beyond date
of intended stay in U.S.
• DS-160 –online nonimmigrant visa application will
be mandatory from April 1, 2010. Prior Forms, DS156, DS-157 etc. are being replaced by Form DS - 160
• Photo
• Fees
- $131 + applicable reciprocity fees increased
fees imminent (see next slide for proposed new fees)
• F/M/J SEVIS visa fee - $200 for F-1s, $180 for J-1s
• Same documents for family members
• Original Notice of Approval, Form I-797 (if
applicable). A copy should be acceptable.
44
Proposed New Fees to Apply for a Visa in 2010
• Under
the proposed rule, applicants for all visas that
are not petition-based, including B1/B2 tourist and
business visitor visas and all student and exchangevisitor visas, would pay a fee of $140.
• Applicants
for petition-based visas would pay an
application fee of $150. These categories include: H, L,
O, P, Q and R visas.
•
H visa for temporary workers and trainees
• The
application fee for K visas for fiancé(e)s of U.S.
citizens would be $350.
• The
fee for E visas for treaty-traders and treatyinvestors would be $390.
45
ENHANCED ENFORCEMENT
- DHS has authority to administer and enforce
visa-related law
- Obtaining a visa is a privilege, not a right
- General delays and unpredictability
- Embassy security and shutdowns
- Heightened scrutiny of applicants
- New petition approval verification requirements
(PIMS)
- Travel advisories for U.S. citizens
- Review of Visa Waiver countries
- http://travel.state.gov/visa/frvi/reciprocity/reciprocity_327
2.html
46
Visa Waiver Program
• Visa-free
entry and stays of up to 90 days
• Available to nationals of 36 countries:
- Andorra, Australia, Austria, Belgium, Brunei, the Czech
Republic, Denmark, Estonia, Finland, France, Germany,
Hungary, Iceland, Ireland, Italy, Japan, Liechtenstein,
Latvia, Lithuania, Luxembourg, Malta, Monaco,
Netherlands, New Zealand, Norway, Portugal, San Marino,
Singapore, Slovakia, Slovenia, South Korea, Spain,
Sweden, Switzerland, and the United Kingdom
• Passport requirements:
- E-passport – if passport issued on or after 10/26/06
- Digital photograph – if passport issued btw 10/26/05 and
10/25/06
- Machine-readable passport – if issued btw 10/26/04 and
10/25/05
• ESTA
– Electronic System for Travel Authorization:
new online advance authorization system for VWP
travelers. Became mandatory on 01/12/2009.
47
ENTRY INTO THE U.S.
• US
VISIT
- Entry “check in” system
• Photographing and fingerprinting upon entry
- Applies to all NIV holders and Visa Waiver Program
travelers
- Effective 1/19/2009, applies to all U.S. LPRs, most
Canadian citizens (except Canadian visitors for
business/tourism, transiting travelers, unless inadmissibility
waiver required)
- Exit procedures currently suspended
• NSEERS (“special registration”)
- For certain nonimmigrants
- Requires fingerprinting, photographing & secondary
inspection; follow-up registration at DHS discretion
- Departure through designated ports only
- Change of address/employment/school on Form AR-11SR
- http://www.ice.gov/pi/specialregistration/index.htm
48
Form I-94
• Form
I-94 Arrival/Departure Record Card (I-94 card)
- Date of issuance
- Status classification
- Date of expiration of legal status
- Admission number
49
EXCEPTIONS FOR CANADIANS
• Passport
now required for air entries from within or
outside of Western Hemisphere. Evidence of
citizenship and identity required for land/sea
entries from within WH.
• No visa required (except for A, E & G visas)
• Inspected and issued I-94 (except visitors) at
airport or border
• Eligible for TN status
• May process L-1 at border
50
MAXIMUM STAY
• H-1B - 6 years w/ possible addl. Extensions
• L-1A - 7 years
• L-1B - 5 years
• O - no maximum
• F (EAD) -
12 months; 12 month postcompletion OPT extension available for certain
science, technology, engineering & math graduates
• J - 18 months for trainees; 12 months for
• TN - no maximum but 3 year increments
• E - no maximum
51
interns
FOR MORE INFORMATION
•
United States Citizenship and Immigration Services (USCIS)
- http://www.USCIS.gov
•
Department of Homeland Security
- http://www.dhs.gov
•
U.S. Embassy and Consulate Information (DOS)
- http://usembassy.gov
•
Department of Labor (DOL)
- http://www.dol.gov/
•
Social Security Administration (SSA)
- http://www.ssa.gov
52
1986 IRCA Legislation Had Shortcomings
•
Creation of I-9 was quid pro quo for amnesty
•
Millions legalized if here from 1981- 1986
•
But borders never got sealed
•
Shortage of unskilled workers developed
•
False documents were easily available
53
ICE Machine Gearing Up
•
ICE now being told to target employers
•
Quid pro quo for new amnesty
•
Some industries will be short-term casualties
•
ICE targeting wholesale violators
•
650 employers notified in July 2009
•
1,000 in December 2009
54
Good Faith Defense
•
Do the documents appear genuine?
•
Constructive notice?
•
Obvious fake docs, SSA mis-match letters, other
conduct
•
ICE Knows I-9 Rules are Complex
•
ICE Looking for Good Faith Compliance
55
Penalties
• Fines
based on conduct
• $110
to $16,000 per occurrence
• Criminal
• Up
penalties for pattern and practice
to 5 years in prison
• Debarment
56
as federal contractor
I-9 Self Audit
• Proactive
approach best
• I-9 self audit of entire company
• Hire counsel to assist
• Terminate unauthorized workers
• Correct I-9’s that were done wrong
57
E-Verify I-9 Verification
• On
line system to verify I-9 documents
• Partnership
• US
• ICE
CIS administers the program
looks favorably on use of E-Verify
• Queries
58
between DHS and SSA
DHS and SSA Databases
E-Verify Statistics
• 96%
verified to work within minutes
• 4%
receive tentative non confirmations (TNC)
requiring follow up
• TNC
• Final
– 3% to SSA, 1% to CIS
Non Confirmation: 3.5%
• System
59
much more accurate now
E-Verify
•
Fed Contractors: Effective September 8, 2009
•
Congress may moot litigation
•
$100K per year in biz with fed govt
•
Subcontracts -- $3k per year
•
Also required for STEM extensions
•
Many states now require E-Verify
60
Common Work Authorization Documents
•
•
•
•
•
•
61
Drivers License and SSN
Restricted SSN never valid for work
U.S. Passport or Green Card
U.S. Birth Cert & Photo ID
Work Permit
Foreign Passport and Certain I-94’s
E-Verify Registration
•
•
•
•
•
62
Register on-line with US CIS
No fee
Memorandum of Understanding (MOU)
Designate corporate administrator
3rd party agent can submit data
E-Verify
• New
Hires Only at this Time
• Must
Obtain SSN from New Hire
• Don’t
need SS Card
• For
I-9 List B doc, Need Photo ID
• Not
Considered Discrimination
• Complying
63
with MOU
E-Verify Photo Screening Tool
•
Photo verification capability
•
Help detect identity theft
•
Checks photos, CIS & DOS databases
•
Drivers Licenses Photos not in Database
64
Problems with E-Verify
65
•
Doesn’t detect stolen Identity docs
•
TNC 8 Day Drill Can Be Difficult
•
States Not Sharing Data with DHS
•
Litigation
•
Congress indecisive re future of the program
Future of E-Verify
66
•
Administration Supports E-Verify
•
Data continually improving
•
Privacy concerns outweighed by protection of US
Workers
•
Technology will lead debate towards greater use
•
Possibly a national ID card with fingerprints and
photo
Immigration to the USA
through Investment in EB-5
Green Card Program
September 2008
LEGAL REQUIREMENTS
• Investment
of US$1,000,000
- US$500,000, if
• Rural Area
- Metropolitan Statistical Areas – MSA
cannot be rural
• High Unemployment Area (150% of
National Average)
- Creation of 10 Jobs
• US Workers
68
LEGAL REQUIREMENTS, Con’t
• Include:
- Principal investor
- Investor’s Spouse
- Investor’s Children unmarried and under 21-year old (At
Time of Admission into the US after Consular processing or
Final Interview where adjustment of status approved in the
US)
- Spouse and older children can work
- Children Can Go to Public or Private Schools
69
LEGAL REQUIREMENTS, Con’t
• After
admission some family members may wish to return to home
country
• Permit
can be obtained to lawfully remain out of the USA for up to
2 years after commencement of Conditional Permanent Residence
• Formalities
MUST be carefully followed and application and
biometrics completed while IN the US.
• The
70
Reentry Permits may be renewed
LEGAL REQUIREMENTS, Con’t
• Steps
–
- Filing of form I-526 Petition at USCIS (4 to 6 months; average 5
months)
- Approved I-526 Petition Processed at National Visa Center
(NVC) (2 - 3 Months)
- NVC Sends Petition to US Consulate for Final Interview
(2 – 9 Months)
- Timing will vary for US consuls around the world
71
LEGAL REQUIREMENTS, Con’t
• Steps,
Con’t
- If the Investor is in the US the case may be processed as an
Adjustment of Status (AOS) in the US
- Work authorization (EAD) and if qualified, travel documents
(Advanced Parole) will be issued to the investor and her or his
qualifying family in about 90 days after filing the AOS (Form I485)
- The processing time of the AOS will take about 9 months or more
from date of filing.
72
LEGAL REQUIREMENTS, Con’t
• 2-Year
Conditional Residence (CR)
- Continued Investment and Employment Creation
• Submit
Application for Removal of
Condition 90 days before 2nd year anniversary and
not later than the 2nd anniversary of the CR
- Divorce from spouse or marriage or aging out of
children after CR will not stop removal if all else is OK
- Estimated processing time 6 months or more
73
LEGAL REQUIREMENTS, Con’t
• Eligible
to Apply for US Citizenship after 5 years from date
of Conditional Permanent Residence
• Conditional
Permanent Resident and Permanent Resident
Expectations:
- Reside in the US (See reentry permits)
- Pay taxes as a US Citizen
- Pass the English and civics tests
74
LEGAL REQUIREMENTS, Con’t
• Most
Common Issues
- Lawful Source of Funds
• Trace of Investment Money – Every dollar must be legally obtained and
accountable
• May be loan or gift from family, friends or company.
- Origination of loan or gift funds MUST be proved to be
from a lawful source
• Bank loans – not secured by the investment do qualify
75
LEGAL REQUIREMENTS, Con’t
• Most
Common Issues
- Ability to maintain business and active management
- Ability to prove 10 full-time legal employees
- Investment has to be at risk
- No guarantees are given or are permitted by law
76
LEGAL REQUIREMENTS, Con’t
• Regional
Center
- Authorized Investment Vehicle
- Can Count Direct and Indirect Employment Creation
- Must still prove every case that jobs will be created,
directly or indirectly
- Approval is not automatic
- Investment is NOT US Government Approved
- No need to be actively working in the business
- Investor is a Limited Partner
77
ADDITIONAL REQUIREMENTS
• MUST
• Must
get independent business and tax advice
conduct own due diligence
• Fragomen,
Del Rey, Bernsen & Loewy, LLP advises only on
immigration law and practice issues and will file the cases
• By
law investment is at risk with NO guarantees
• For
an updated list of all registered Regional Centers please see
the USCIS website at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f3
5e66f614176543f6d1a/?vgnextoid=d765ee0f4c014210VgnVCM1
00000082ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVC
M100000b92ca60aRCRD
78
LEGAL REQUIREMENTS
Please note:
All times for processing referred to in this
presentation are estimates based on current
processing time as published by the USCIS or as
experienced
No timing can be guaranteed nor can an approval of
a case be guaranteed by anyone. The process is
in the sole and complete authority of the US
Government, Department of Homeland Security,
USCIS and the Consul at the consular post or
embassy which falls under the US State
Department (DOS).
79
Questions / Discussion