A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, June 26, 2017

False Statements Need to be Material to Support Denaturalization

Mrs. Maslenmjak made incorrect statements when she applied for political asylum in the United States. Her application was approved and she eventually became a naturalized U.S. citizen.  Years later, based on these incorrect statements, the U.S. government initiated legal actions to "de-naturalize"  her.  In her defense, Mrs. Maslemjak argued that she can be denaturalized only if her false statements had made a difference in the government's decision to grant her refugee status. The United States Supreme Court agreed. 

In 1998, Mrs. Maslenjak and her husband, both ethnic Serbian, lived in Bosnia during the war between Bosnia and Serbia. She successfully applied for asylum based on her family's fear of persecution. In her application, she stated that her husband had failed to serve in the Bosnian Serb army.  Based on the approval of her asylum application, she became a permanent resident of the United States.  Subsequently, DHS discovered that her husband did serve in the Bosnian Serb army and prosecuted him for making false statements. Mrs. Maslenjak applied for naturalization immediately and was granted citizenship.  She testified in her husband's court hearings and admitted that she lied when she said that her husband did not serve in the Bosnian Serb army. 

The U.S. Government prosecuted Mrs. Maslenjak for making these false statements and also stripped her citizenship.  She appealed to the Sixth Court of Appeals, arguing that she should be allowed to keep her citizenship since the untruthful statements that she made were immaterial to her asylum claim - which was based on fear of persecution by Bosnian Muslims.  The Sixth Circuit affirmed the lower court's decision, by holding that any false statements are sufficient to support denaturalization pursuant to 18 USC §1425(a), the relevant Federal statute. 
Undaunted, Mrs. Maslenik appealed to the United States Supreme Court, which sided with her.

By using the most natural way of understanding the statue, the Supreme Court held that in order to use any false statements by application for denaturalization, they must be material and have somehow contributed to the approval of citizenship.   In other words, there must be a direct causal relationship between the false statements and the eventual award of citizenship in order to strip away somebody's citizenship under §1425(a).  And whether or not there is such as causal link should be decided by the jury.  

Here, during the trial of Mrs. Maslenik, the jury instructions did not specify that her false statements must have been material and contributed to the outcome of her asylum application.  Consequently, the Supreme Court vacated the Sixth Circuit decision and remanded the case to the lower court to provide proper instructions to the jury. 

The Supreme Court decision applied a balancing test between the need to prosecute false statements and the rights of naturalized citizens.  To protect the rights of naturalized citizens, denaturalization should be based on some very strong reasons but not just any illegal conduct during the naturalization process.  It should be noted that Mrs. Maslenik might still lose her citizenship at the end.  A jury could conclude that her asylum application was granted partially based on her false testimony that her husband did not serve in the military as required,  If so, her false statements were material in the asylum decision and, according to the U.S. Supreme Court decision, she would be stripped of her citizenship. 


Friday, June 23, 2017

White House to Review Entrepreneur Parole Rule



Thinking about forming your startup in the U.S.? Hold that thought for now. The Trump Administration has recalled a published rule for entrepreneurs to enter the U.S. in parole status.

The International Entrepreneur Rule was created by the Obama Administration to bring in more foreign entrepreneurs to the U.S. The final rule was published on January 17, 2017 and was supposed to go into effect on July 17, 2017.   However, the Trump Administration has recently sent the rule back to the Office of Management and Budget for "further review".  As such the future of the rule has become uncertain.  It is expected that the rule will be amended, postponed or even cancelled.  

Most countries such as Canada and Australia have some form of "startup visa" to allow entrepreneurs to enter to start a business venture. America does not such a visa.  The International Entrepreneur Rule designed by the Obama Administration came as close to a startup visa as one can get.

This rule would allow entrepreneurs to enter the U.S. in parole status and work on their startup businesses for a period of 30 months, with another 30 months of extension possible if certain criteria are met.

This rule is based on the parole authority of DHS in the immigration regulation, which allows the government to parole certain individuals into the country for emergency, humanitarian and public interest reasons.  The entrepreneur parole rule was promulgated based on the premise that allowing investors to establish their startups in the U.S. would bring in capital and create jobs, which are public interests.

Under the rule, an investor would be required to have invested at least $250,000 in a startup created within the last five years.   The investor's ownership interest of the business must also be at least 10%. Further, there must be evidence that the startup business has potential for rapid growth and job creation in the U.S.

As parolees, the investors would be allowed to work and develop their businesses. The parole status is less desirable than employer visas such as H-1B, and can be revoked at any time.  However, these entrepreneurs may apply for green cards subsequently if they are qualified otherwise. Upon completion of the initial 30 months, DHS may in the exercise of its discretion grant an extension of 30 months.  An extension would only be approved if at least five full time positions have been created for U.S workers.

Various organizations and trade groups have urged the Trump Administration to green-light the parole rule for entrepreneurs.  However, President Trump so far has not made any public statements on this particular program.  On the one hand, the Trump Administration campaigned on promises of job creation and economic opportunities, which would seem consistent with the startup parole rule. On the other hand, the same administration has also taken tough positions on immigration issues. Hence, it is difficult to predict exactly what they are going to do. A likely outcome would be some sort of compromise - the rule will be permitted to move forward but with some changes of terms and conditions.



Thursday, June 22, 2017

DHS Secretary Rescinds DAPA; DACA Not Affected for Now

Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders, commonly known as DAPA, did not go too far after it was proposed by President Obama in 2014.  Recently, DHS Secretary Kelly finally put the nail in the coffin.  

On June 15, Secretary Kelly signed an agency memorandum rescinding Obama's November 20, 2014 memorandum, which created the DAPA program.  According to Secretary Kelly, after consulting with the Attorney General, there is no viable way to litigate the program in court.  

Under the DAPA proposal, undocumented parents of U.S. Citizens and green card holders can stay in the U.S. for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks, and pay back income taxes.

The DAPA program never went into effect after it was proposed. Twenty-six (26) states filed a lawsuit to block the implementation of DAPA.  The states argued, among other things, that under DAPA the States would incur additional costs to produce driver's licenses for DAPA beneficiaries. Consequently a Federal District Court judge in Texas granted an order of temporary injunction against the executive of the DAPA program in 2015.  The Obama Administration appealed to the 5th Circuit Court of Appeals, which also sided with the states.  The case went to the U.S. Supreme Court.  In a 4-4 decision, the Supreme Court affirmed the lower court's decision.  What all this means was that the DAPA program could not be implemented. 

Secretary Kelly's rescission of DAPA should not come as a surprise.  The Trump Administration has long been vocal against Obama's immigration policy and executive actions favoring the undocumented.  In fact, rescission was not even necessary here.  By not filing additional pleadings with the court, the program would remain dead.  

The good news is that Secretary Kelly's memo does not affect the sister program of DACA (Deferred Action for Childhood Arrivals).   DACA allows individuals who were brought to the U.S. illegally as children and who have completed their high school education to apply for temporary legal status to live and work in the U.S.  The Frequently Asked Questions of the Rescission memo specifically confirm that the DACA program will not be affected by Secretary Kelly's memo. DACA recipients will continue to be able to apply for their two-year extension and employment authorization documents (EAD).  An estimated 800,000 individuals in the U.S. are eligible for DACA benefits.

However, some observers are not optimistic about the future of DACA given the Trump Administration's tough stance against illegal immigration.  Although President Trump has expressed sympathy for childhood arrivals, and DACA program remains to be in effect for now, there has been reports that some DACA beneficiaries are targeted by ICE.  For example, ICE has started to initiate deportation proceedings against DACA beneficiaries who have violations including DUIs.  Hence, it is important for these beneficiaries to live a responsible life, pay taxes and avoid any violations of law.  

Tuesday, June 20, 2017

Visa Bulletin Predictions: July 2017 and Onward




Every month after the release of the monthly visa bulletin, DOS Visa Office Chief Mr. Charlie Oppenheim would provide his insights on the trends, movements, predictions, etc., regarding the usage of immigrant visa numbers.  The following are the highlights of his insights following the publication of the July 2017 Visa Bulletin:  


EB-1 China and India. The final action date for EB-1 China and EB-1 India (January 1, 2012) that was imposed in June 2017 remains for July 2017 and is expected to hold through the end of this fiscal year. Due to the availability (through May) of "otherwise unused numbers" in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.

EB-2 Worldwide. Since demand declined slightly in the second half of May, and demand during the first week of June was steady, Charlie felt comfortable keeping EB-2 Worldwide current in July. A final action cut-off date will be imposed in this category in August and will be more dramatic than it would have been if a date had been imposed in July. The good news is that this category will become current again on October 1, 2017.

EB-2 India. In July, the final action date for EB-2 India will advance three weeks to July 22, 2008. Charlie expects minimal advancement in this category through the rest of the fiscal year. The best case scenario for this fiscal year would be a final action date of September or October 2008.

Pressure on this category is attributable to high demand in EB-2 India and the lack of otherwise unused numbers under the EB-2 annual limit, which had been prevalent through FY-2015. Charlie noted that approximately 40 percent of the available EB-2 India numbers are being used by beneficiaries who have upgraded from EB-3 India.

EB-2 China and EB-3 China. For the first time this fiscal year, the final action date for EB-2 China is later than the final action date for EB-3 China. EB-2 China advanced three weeks in July to March 22, 2013, and Charlie expects slow progress in this category will continue. By contrast, EB-3 China will retrogress three years in July to January 1, 2012, as a result of a significant amount of EB-3 downgrades. The final action date for EB-3 China Other Workers will hold at July 15, 2006, and this date could also retrogress in August.

The final action date of January 1, 2012, for EB-3 China will hold through the end of this fiscal year, but will advance to October 1, 2014, effective October 1, 2017.

The annual allocation for EB-3 China is only 2,500 because the Chinese Student Protection Act requires an offset of 1,000 numbers from the China employment-based visa annual limit each fiscal year. Three hundred of those numbers are deducted from the EB-3 limit, and seven hundred numbers are deducted from the EB-5 limit.

EB-3 Worldwide. In July, EB-3 Worldwide will advance less than two months to June 8, 2017, keeping this category effectively current.

EB-3 India. In July, EB-3 India will advance five months to October 15, 2005, and should continue to advance. The otherwise unused numbers for EB-3 Worldwide are required to be allocated in order of priority date, meaning that these numbers will fall to EB-3 India, which has the earliest final action date in the EB-3 category.

EB-5 China. The final action date for EB-5 China will continue to hold at June 8, 2014, in July and Charlie expects this category to advance to by one week for August. Some additional forward movement in this category remains possible for September should demand by USCIS be less than estimated.

FB-4 Worldwide. In July, the final action date for FB-4 Worldwide will be May 8, 2004. Charlie hopes to advance this category later this fiscal year, but the data is too close to make a definitive prediction at this time. The response rate to the NVC "Agent of Choice" letters in this and most family-based categories is less than 50%, with less than 35% of those respondents providing all of the information required for a visa interview to be scheduled. Charlie reminds members that it is important to promptly respond to an "Agent of Choice" letter. If individuals who received "Agent of Choice" letters before April 2016 had responded promptly, more than 100,000 of them could have been scheduled for an interview by April 2017.

Special Immigrants. A final action date of August 15, 2015, will be imposed for EB-4 India in July. This date tracks the July final action date for El Salvador, Guatemala, Honduras, and Mexico (which advanced one month from June) and will continue to do so for the remainder of the fiscal year, possibly reaching October 2015. In October, EB-4 India is expected to return to current. A final action date for EB-4 will continue into FY 2018 for the other countries, though Mexico may have different date from El Salvador, Guatemala, and Honduras.



Charlie also answered some questions: 

Question: Since EB-3 Worldwide and Mexico demand is low, will these otherwise unused numbers also continue to advance the final action date for EB-3 Philippines in July, August, and September (the last quarter of FY 2017)? Is it realistic to anticipate that by the end of the 2017 fiscal year, the cut-off date for the Philippines will have advanced to at least 2015? Given the USCIS adjustment statistics and the NVC shelf files, would it also be realistic to anticipate that more rapid movement for the Philippines will occur in FY 2018?

Answer: While EB-3 Philippines will continue to advance, this category will not benefit from numbers "otherwise unused" under the Worldwide EB-3 limit. Those unused numbers are allocated in order of priority date without regard to the per-country limitation. Therefore, such numbers would be provided to EB-3 India applicants, which are subject to the earliest final action date.

For July, EB-3 Philippines will advance one year to May 15, 2014, and will likely advance to a date in the fall of 2015 before the end of this fiscal year.

(AILA Doc. No. 14071401 | Dated June 19, 2017)

Monday, June 19, 2017

July 2017 Visa Bulletin: EB-3 China Retrogresses 2.5 Years


As predicted previously, EB-3 China finally retrogresses for about 2.5 years after having been ahead of EB-2 for many months.  "Downgrade applications" from EB-2 has contributed to this sharp turn. However, the State Department predicts retrogression will be reversed in October 2017.  

On the other hand, EB-3 India has a nice forward movement of 9 months to 02/15/2006.

EB-1 India and China continued to have a cutoff date of 01/01/2012.

The State Department reports that cutoff dates will likely be introduced for several EB-2 categories: Mexico, Philippines and Other Countries.   It is important for eligible applicants in these categories to file their adjustment of status applications in June or July before any retrogression happens.  For examples, if they have an approved I-140 petition, they may submit their I-485 applications now.  Or if their labor applications have been certified, they may also submit the I-140 and I-485 applications together. 

Family immigration categories have some moderate forward movements.  FB-1 Mexico and Philippines move forward by about 4-5 months.


AD: Dates for Final Action (Approval)
FD : Dates for Filing Applications
FAMILY
Other Countries
China
India
Mexico
Philippines
F1
AD
12/22/2010
12/22/2010
12/22/2010
01/15/1996
09/15/2006
FD
07/22/2011
07/22/2011
07/22/2011
04/01/1996
09/08/2007
F2A
AD
09/08/2015
09/08/2015
09/08/2015
08/22/2015
09/08/2015
FD
04/08/2016
04/08/2016
04/08/2016
04/08/2016
04/08/2016
F2B
AD
11/01/2010
11/01/2010
11/01/2010
06/01/1996
11/01/2006
FD
09/1/2011
09/01/2011
09/01/2011
08/08/1996
07/22/2007
F3
AD
07/08/2005
07/08/2005
07/08/2005
03/22/1995
12/15/1994
FD
12/01/2005
12/01/2005
12/01/2005
05/01/1995
02/01/1995
F4
AD
05/08/2004
05/08/2004
09/22/2003
08/01/1997
02/15/1994
FD
11/15/2004
11/15/2004
06/22/2004
01/08/1998
02/08/1995
1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).
2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.
2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.
3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)
4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment
Other Countries
China
El Salvador Guatemala Honduras
India
Mexico
Philippines
EB1
AD
C
01/01/2012
C
01/01/2012
C
C
FD
C
C
N/A
C
C
C
EB2
AD
C
03/22/2013
C
07/22/2008
C
C
FD
C
10/01/2013
N/A
02/01/2009
C
C
EB3
AD
06/08/2017
01/01/2012
06/08/2017
02/15/2006
06/08/2017
05/15/2014
FD
C
09/01/2015
N/A
10/01/2006
C
07/01/2015
Other Workers
AD
06/08/2017
07/15/2006
06/08/2017
02/15/2006
06/08/2017
05/15/2014
FD
C
06/01/2008
N/A
10/01/2006
C
07/01/2015
EB4
AD
C
C
08/15/2015
08/15/2015  
08/15/2015
C
FD
C
C
N/A
C
C
C
EB5
AD
C
06/08/2014
C
C
C
C
FD
C
09/01/2014
N/A
C
C
C
1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers,outstanding prof./researchers)
2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.
3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)
4th: "Special Immigrants" (Religious & others)
5th: Employment Creation (Investors)