Articles Posted in Hiring an Immigration Lawyer

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In this video attorney Jacob Sapochnick discusses how to complete Form I-485 for adjustment of status to permanent resident. Please keep in mind that this video is not intended to be legal advice. The information provided is for educational purposes only and does not substitute the legal advice of an attorney. If you are filing the I-485 application on your own, you must read the form instructions very carefully or seek the assistance of an attorney who will complete the forms according to your specific situation.

You must make sure that all of the information on the I-485 application is correct, because the I-485 form is the form that USCIS is going to use to prepare your green card. Form I-485 must be signed and completed by the beneficiary (the person that is applying for the green card), not the petitioner of the I-130.

What is Adjustment of Status?

Adjustment of Status is the process by which an eligible foreign national already in the United States can apply for permanent residence without having to return to their home country to obtain a visa through consular processing. Adjustment of status refers to the change of the foreign national’s legal status from a non-immigrant (temporary) category to an immigrant (permanent) category.

Generally, to be eligible to file for adjustment of status within the United States, a foreign national must have an immigrant petition filed on their behalf either by a US citizen (USC) or Legal Permanent Resident (LPR) qualifying relative (USCIS Form I-130 Petition for Alien Relative) or employer (USCIS Form I-140 Immigrant Petition for Alien Worker). Exceptions exist for self-petitioning Amerasian, Widow(ers), special immigrant categories such as refugees or asylees, and humanitarian visas. In addition, the beneficiary of the green card application must have been inspected, admitted, or paroled into the United States to qualify for adjustment of status within the United States, except in cases of 245i.

For more information about adjustment of status please click here.

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In this live stream, attorneys Jacob Sapochnick and Marie Puertollano discuss recent topics in immigration including the new USCIS policy giving immigration officers ample discretion to deny an application or petition filed with USCIS without first issuing a RFE or NOID, suspension of premium processing, fraudulent H-1B schemes, and more.

Overview:

RFE/NOID Policy

Beginning September 11, if you do not provide sufficient evidence to establish that you are eligible for the immigration benefit you are requesting, USCIS may exercise their discretion and deny your petition without first issuing a request for evidence or RFE. This new policy applies to all applications and petitions filed after September 11th, with the exception of DACA renewal applications.  The decision to deny your application or petition without issuing a RFE or NOID will ultimately be up to the discretion of the officer reviewing your petition. An officer may in his discretion continue to issue a RFE or NOID according to his best judgement.

If you are filing for a change of status or extension of your status, we recommend that you file early, so that you are not out of status in the case that USCIS denies your request for an immigration benefit. This will give you the opportunity to either re-file or to consider changing your status to another visa type. In addition, if you have the ability to apply for premium processing service, you should take advantage of that service.

Suspension of Premium Processing

At the moment premium processing services have been temporary suspended for cap-subject petitions until February 19, 2019, with the exception of cap-exempt petitions filed exclusively at the California Service Center, because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap exempt institution.

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In this video attorney Jacob Sapochnick covers the top ten tips to help you overcome the marriage fraud interview also known as the “STOKES” interview. A foreign national applying for permanent residence based on marriage may be required to attend a second interview. This typically occurs in cases where the officer, who interviewed the couple during the initial marriage interview, does not believe that the couple has a bona fide marriage, because of red flags that arose during the initial interview.

1. Be Honest

Our first tip to avoid being scheduled for a second interview also known as the STOKES interview is simple. Be honest with yourself, with your partner (the U.S. Citizen or LPR spouse), and your attorney if you have one. Before walking into your initial I-485 interview you should be careful not to misrepresent the facts in your relationship and ensure that you and your partner are both being honest and truthful regarding all aspects of your marriage. If you or your spouse misrepresent any facts about your relationship, the immigration officer will presume that you do not have a bona fide/genuine marriage, and it will be very difficult to overcome this presumption at the second interview.

2. Preparation

The second tip to avoid the STOKES interview is to be well prepared. You and your spouse should prepare all of your documentation proving bona fide marriage well in advance of your I-485 interview, so that you have enough time to review your documentation with your spouse and your attorney in preparation of your interview. This well make you feel more confident and prepared when it comes time to your I-485 interview.

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In this video, attorney Jacob Sapochnick discusses what you can do if your TN visa is denied.

What is a TN Visa?

First, let’s discuss what a TN Visa is, who qualifies, and what the process is like to apply.

The TN Visa allows citizens of Canada and Mexico to work in the United States under the North American Free Trade Agreement.

What are the requirements?

In order to be eligible to apply for a TN visa, the applicant must:

  1. Be a Citizen of Canada or Mexico
  2. Apply to work in a profession authorized by NAFTA.For a complete list of authorized professions click here.
  3. Fill an approved position under NAFTA regulations
  4. Work in a pre-arranged full-time or part-time job, for a U.S. employer
  5. Have the qualifications required for the position sought.
  6. Educational requirement: The employer must submit proof that the applicant meets the minimum education requirements or has the alternative credentials as required by NAFTA. Evidence of professional qualifications may include copies of degrees, certificates, diplomas, professional licenses, or membership in a professional organization. Degrees, diplomas, and certificates from an educational institution outside of the U.S. must be accompanied by an evaluation by a credential evaluation service specializing in evaluating foreign academic credentials.
  7. Work Experience Requirement: The applicant must provide evidence of his or her experience in the position sought (recommendation letters from former employers).
  8. Provide proof of ties to your home country

Application Process

Canadian Citizens

Canadian citizens may apply for a TN visa at a U.S. port of entry providing the following supporting documentation:

  • Request for admission under TN status to Department of Homeland Security, Customs and Border Protection, U.S. immigration officer;
  • Employment Letter – Evidence of professional employment;
  • Proof of professional qualifications, such as transcripts of grades, licenses, certificates, degrees, and/or records of previous employment;
  • Proof of ability to meet applicable license requirements;
  • Proof of Canadian citizenship- Canadian citizens may present a passport, as visas are not required, or they may provide secondary evidence, such as a birth certificate. However, Canadian citizens traveling to the United States from outside the Western Hemisphere are required to present a valid passport at the port-of-entry;

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Welcome back to the immigration lawyer blog! In this video, attorney Jacob Sapochnick discusses the O-1B Visa for Artists and Entertainers.

Overview: 

The topic of discussion in this video is: How can a tattoo artist live and work in the United States? The O-1B category is an excellent choice for artists who have demonstrated extraordinary ability in their line of work.

What is the O-1B visa?

The O-1B category applies to distinguished aliens wishing to travel to the United States temporarily to engage in employment in an area of extraordinary ability in the arts, motion picture, or television industry. This category includes tattoo artists and social media influencers. Tattoo artists must have a sponsor or agent to obtain an O-1B visa and are granted a visa for the duration of their contract to perform services in the United States.

O-1B Visa Requirements

  • The applicant must demonstrate that they have received sustained recognition on a national or international level in their area of extraordinary ability i.e. awards, titles, honorary distinctions, publications, membership in a distinguished board or professional association, etc.;
  • The applicant must provide evidence of continuous recognition in the area of extraordinary ability;
  • The applicant must demonstrate that they have achieved a high level of expertise in their field. For an O-1B visa, the applicant must demonstrate that their level of skill and recognition is significantly superior to that of an individual in the same field who would be considered a person of ‘prominence’ in said field.

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In this video, attorneys Jacob Sapochnick and Marie Puertollano discuss recent immigration updates regarding the calculation of unlawful presence for F-1 international students and other topics.

Overview:

Memorandum Policy Updates for F-1 Students

Per a new policy memorandum released by USCIS, if you are a student who is out of status, you will begin to accrue unlawful presence on August 9th. Students have at least 5 months to file a reinstatement to avoid falling out of status and accruing unlawful presence.

What is happening with DACA?

On August 3, 2018, a federal judge from the United States District Court for the District of Columbia upheld a decision from the lower courts, ordering the complete restoration of the Deferred Action for Childhood Arrivals (DACA) program. This new ruling gives the Trump administration a 20-day deadline to either implement the complete restoration of the DACA program or file an appeal. The Trump administration plans to appeal the decision. In a separate lawsuit filed by Texas and other states, a judge will hear arguments challenging the restoration of the DACA program. A decision in that case has not yet been made. We will notify our readers once a decision has been made.

For the moment, DACA holders may continue to seek a renewal of their DACA benefits, but new requests for DACA will not be accepted.

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In this video we cover a new USCIS policy that can have devastating consequences on students who overstay their duration of stay in the United States, or otherwise violate their status. This new policy will change the way F-1, J-1, and M students, accrue unlawful presence in the United States, for visa holders have violated the terms of their visa by not attending school or engaging in unauthorized employment.

Background

In the year 1996 Congress passed legislation that previously governed how an individual on a non-immigrant visa type such as an F-1 visa, could accrue unlawful presence. Pursuant to this legislation, visa holders who overstayed for more than 180 days, could be subject to a 3-year bar, while visa holders who overstayed for more than one year, could be subject to a 10-year bar.

Typically, individuals who travel to the United States on a non-immigrant visa type receive an I-94 arrival/departure record and a stamp in their passport indicating the length of their authorized stay in the United States. Failure to abide by the duration of stay results in an immigration violation of the terms and conditions of a non-immigrant visa type.

F, J, and M students are unique in that these individuals do not receive a definitive length of stay within the United States, and instead are issued an I-20 (for F students) or DS-2019 (for J students) that denotes their authorized stay as “D/S” or “Duration of Stay,” meaning that the individual’s stay within the United States is not confined by any particular date, but instead depends upon the conclusion of that individual’s program of study or authorized employment.

While students on an F-1 visa type could violate their status by failing to go to school, they could not accrue unlawful presence within the United States because of the D/S designation. This class of individuals could only accrue unlawful status at the time of being apprehension by an immigration official or by court judgment.

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In this video, attorneys Jacob Sapochnick and Marie Puertollano join a live session on Facebook and Youtube to cover the latest in immigration, E-2 visa changes, TN visa updates, as well as tips, tricks, and advice on how to protect yourself amid this changing immigration climate.

Overview: 

Revised NTA Policy and Delayed implementation:

USCIS has revised its NTA policy expanding the class of individuals who may be referred to ICE and issued a Notice to Appear. Under the revised policy, USCIS may now refer cases “with articulated suspicions of fraud to ICE prior to adjudication.” The implementation of this policy has been placed on hold until operational guidance is implemented by immigration.

What will the new policy do?

The new policy prioritizes the removal of aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal.

Prioritizes the removal of individuals who:

  • (a) Have been convicted of any criminal offense;
  • (b) Have been charged with any criminal offense that has not been resolved;
  • (c) Have committed acts that constitute a chargeable criminal offense;
  • (d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • (e) Have abused any program related to receipt of public benefits;
  • (f) Are subject to a final order of removal, but have not departed; or
  • (g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

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Welcome to our YouTube Channel where we touch on all things immigration.

Our law firm is dedicated exclusively to the practice of immigration and nationality law. During the past fourteen years, we have helped thousands of clients from all over the world immigrate to the United States. From immigrating athletes to business professionals and investors, our practice does it all.  On our YouTube channel you will find helpful information about recent changes to the immigration landscape, policy changes, information about different visa types, and more. We provide videos on almost every topic in immigration law. Subscribe to our channel to receive the latest updates in immigration news.

To explore the various services we offer, please visit our website.

Our diverse staff is available to answer your legal questions in Spanish, French, Russian, Hebrew, as well as other languages.

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Overview: 

What is an E-2 visa?

The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities, for a specified period of two years subject to renewal. Investment activities include the creation of a new business. Foreign nationals must invest a substantial amount of capital in a new or existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

Who can get it?

Only foreign nationals from treaty nations may apply for the E-2 visa. To find out if your country qualifies, click here.

Level of Investment

Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. The investment must be in an operating business e.g. a speculative investment in undeveloped land would not qualify, whereas an investment in a real estate development project probably would. Also, a substantial part of the investment must have been made prior to applying for E-2 status.

Key Points

  • The investment must be substantial, a standard which depends on the nature of the enterprise. Generally, investment funds or assets must be committed and irrevocable. The funds or assets must be deemed sufficient to ensure the success of operations.
  • The investment must be real and active and not passive; this means that a bank account, undeveloped land or stocks, or a not-for-profit organization will not be sufficient to be considered.
  • The enterprise must be a real, operating commercial enterprise or active entrepreneurial undertaking productive of some service or commodity. Paper organizations, speculative, or idle investments do not qualify as real operating enterprises or active entrepreneurial undertakings. Funds in a bank account are not considered at risk since they have not been committed.

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