The International Business Law Firm PC

Category: IMMIGRATION

  • 4th Circuit Affirms Blocking of Trump Executive Order on Refugees

    Today, January 8, 2021, the US Court of Appeals for the 4th Circuit affirmed the preliminary injunction of the Maryland US District Court blocking the President’s Executive Order 13,888 attempting to create an “opt-in” system requiring that both a state and a locality provide their affirmative consent before refugees will be resettled there, thereby substantially burdening and blocking the settlement of refugees to the United States as established by Congress. Upholding the preliminary injunction the Court stated:

    “The refugee resettlement program by its nature impacts refugees
    assigned to all nine resettlement agencies, which place refugees throughout the country. Enjoining the Order and Notice only as to the plaintiff resettlement agencies would cause inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect.”

    The full decision is located at 201160.P.pdf (uscourts.gov)

  • Re-Starting DACA – Filing as a Dreamer!

    A man in suit and tie holding a microphone.

    Thanks to recent court action, those who are eligible under the original DACA rules can now file new applications, despite the President’s executive order attempting to terminate the program. To do so, forms I-821, I-765, I-765WS must be filed with a $495 filing fee to the appropriate address. Substantial documentary evidence of eligibility must also be provided or the application will be either denied or rejected, even if the applicant is truly eligible.

    There are various online resources discussing eligibility and the filing, such as available through the Immigrant Legal Resource Center or the website Immigrants Rising. The USCIS page showing the changes to policy is located here.

    Of course it is strongly recommended that you file with the assistance of a lawyer to avoid the problems and delays or denials that result from incomplete applications, and IBLF stands ready to assist you with this process. To setup a consultation with IBLF and get started, submit this inquiry form: Click Here.

  • 4th Circuit Further Defines Family Asylum Group

    A comprehensive decision, Sandra Hernandez-Cartagena v. William Barr (https://www.ca4.uscourts.gov/opinions/191823.P.pdf) by the 4th Circuit overturning and remanding a denial of asylum by an immigration judge, affirmed by the Board of Immigration Appeals (BIA), affirms the legitimacy of a family unit as an appropriate social group for asylum protection. The Fourth Circuit found that the BIA’s decision denying the asylum claim was ” manifestly contrary to the law and an abuse of discretion.”

    The immigration judge and the BIA decided the case based on an analysis that a young woman was targeted by a gang individually, raped and beaten because she could not pay extortion, even though her brother had also been injured and the stated purpose of the extortion was to get the parents to pay money to the gang. This decision provides a good analysis for the pleading and testimonial requirements that support such an asylum claim, a situation which often results in denials when the victim of such extortion does not understand the legal requirements for such a claim.

  • H-1B Statutes Are Carefully Crafted to Be Misleading to the Casual Reader

    The H-1B statutes are lobbyist-written and carefully crafted to be misleading to the casual reader. The “prevailing wage” is one area where there has been great confusion; in particular H-1B wage levels. The H-1B wage or skill levels are entirely a bureaucratic creation that have no relation to the job market.

    The article published in the journal The Immigration Post, mentioned that the source of the H-1B Wage Levels is the Bureau of Labor Statistics Occupational Employment Statistics (OES). The BLS puts out a wage survey every May. The OES survey gives by occupation and location the average salary, the 10th, 25th, 50th, 75th, and 90th percentile wages. The 50th percentile (median) is what normal people call “the prevailing wage”. In fact, the Department of Labor’s (DOL) regulations required it (or the mean if the median is not available).

    The State of Utah has had a contract for decades to manage foreign labor certification data. Until 2004 and apparently without any statutory authority, they had been taking the OES survey and then interpolating the data to create approximations of the 17th and 66th percentile wages and putting them out as a high and low prevailing wages.

    Employers were routinely using the 17th percentile wage supplied by this website and claiming it was the “prevailing wage” in H-1B labor condition applications (LCAs) even though this did not meet the requirements under regulation for a prevailing wage.

    However, the Department of Labor is required to approve all H-1B LCAs within 14 days as long as the form is filled out correctly, so employers can put down nearly anything as the prevailing wage and get it approved. The Utah system provided an extremely low wage that had the appearance of being government-approved even if it was not lawful.

    In 2004 Congress enacted 8 U.S.C. § 1182(p):

    4) Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.

    By Center for Immigration Studies

  • Unable to Depart US Due to Pandemic? Avoid Overstay!

    Request “Satisfactory Departure”

    Were you admitted to the United States under the Visa Waiver Program (VWP)? —>  There is no provision of law that would allow you to extend your stay. However, if you are unable to depart before their current period of admission expires due to exigent circumstances, there is an option to request relief in the form of a Satisfactory Departure request. Both U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) have authority to handle these requests which grant an individual a period of 30 days in which to depart the U.S. without being considered to have overstayed their allotted time.

  • 4th Circuit Finds Domestic Violence can be Legitimate Asylum Claim

    The Fourth Circuit issued a published decision (which means it has precedential value which must be followed by judges within the 4th Circuit) which finds a claim of asylum based on the Salvadoran government’s inability to protect a woman from domestic violence is a proper basis for a grant of asylum.

    The Case, (Ruth Jeanette Orellana v. William Barr (http://www.ca4.uscourts.gov/opinions/181513.P.pdf) , was in part based on a stipulation by the government that “Salvadoran women in domestic partnerships who are viewed as property” can form a protected social group, and the decision lends substantial support to this position, even though the government apparently is trying to walk back this interpretation, claiming that the stipulation will be withdrawn upon remand.

    This is an important development because individual cases of domestic violence are not normally sufficient to create the basis for an asylum claim. In this case, however, the documented failure of the El Salvadoran government, police, and court system was so well described that the Court of Appeals rejected the finding by the Immigration Court judge that the victim could be protected in El Salvador. 

  • Virginia Law Criminalizing Gang Activity Not Categorically a CIMT

     On July 19, 2019 the US Fourth Circuit Court of Appeals issued its decision finding that the Virginia offense of participating in criminal street gang activity is not categorically a crime involving moral turpitude.

    The Virginia statute,  Va. Code § 18.2-46.2(A), which prohibits participation in a criminal street gang, is as follows:

    Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. 

    The court reasoned that the statute criminalizes acivity which is not the requisite base, vile, and morally depraved conduct which must be found for it to be a crime of moral turpitude, using, as an example, a situation where a person wearing a gang scarf who trespassed onto property could be found guilty under the statute without any further criminal acts being involved.

    This means that a simple conviction under this statute cannot be used as a basis for deportation of a person so convicted.

  • Immig Judges’ Authority to Administratively Close Restored

    The US Fourth Circuit Court of Appeals has restored Administrative Closure as an inherent power of Immigration Court judges, effectively overruling the current administration’s attempt to preclude this standard procedure.  This tool permits adjudication of pending applications by temporarilly suspending immigration court proceedings.

    This is a very good decision for persons in immigration court proceedings because when there is potential relief from removal, say when the foreign national has a US wife, or and approved PERM application, the attorney may ask for administrative closure to permit a decision on the green card application and possibly a hardship waiver, so that the foreign national can be granted residency status, or be able to expeditiously return to the United States upon the approval.

    This decision overturns the US Attorney General’s recent order trying to stop Immigration Court judges from this procedure, presumably under this Administration’s current policy, which appears to many to be to create dysfunction in the immigration system, delaying applications or procedures that might help legal immigration, assist the undocumented to become documented, or ultimately create new voters out of those who gain legal permanent residence and then citizenship after prolonged court proceedings.

    Although the Attorney General normally can set policy guidance for judges, the 4th Circuit determined that the reasoning of the AG was “. . . a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements” and inconsistent with its stated goals of expedition and efficiency. The court also found that the tool of administrative closure was inherent in the power establishing the immigration courts, granted to them by the US code — the power to efficiently administer and adjudicate their proceedings.

    The case Romero v. Barr, and is located at: http://www.ca4.uscourts.gov/opinions/181850.P.pdf

  • EB-5 Q&A: What qualifies as an EB-5 troubled business?

    Answer:

    A troubled business is defined as a business that has been in existence for at least two years, has incurred a net loss for accounting purposes during the twelve-or twenty-four month period prior to the priority date on the foreign investor’s I-526, and the loss for such period is at least equal to twenty percent of the troubled business’s net worth prior to such loss. You may present your business tax returns, accounting records to show the qualification. In the case of a troubled business, 10 jobs must be preserved, created, or some combination of the two. This means if you currently have 8 full time employee, the new investment need to create additional 2.

  • Head of Household

    Tax – Head of Household (Considered Unmarried)

    Many married people file their taxes as Head of Household in order to save money, not realizing that there are very strict requirments for such a status.  In order for you to qualify as “considered unmarried” you must meet the following criteria taken directly from the IRS website:

    Considered Unmarried

    To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

    1. You file a separate return. A separate return includes a return claiming married filing separately, single, or head of household filing status.
    2. You paid more than half the cost of keeping up your home for the tax year.
    3. Your spouse didn’t live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.
    4. Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child’s birth, death, or temporary absence during the year.)
    5. You must be able to claim the child as a dependent. However, you meet this test if you can’t claim the child as a dependent only because the noncustodial parent can claim the child using the rules described later in Children of divorced or separated parents (or parents who live apart) under Qualifying Child or in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative. The general rules for claiming a child as a dependent are explained later under Dependents .

    Source: https://www.irs.gov/publications/p501#en_US_2018_publink1000220775Business Law