On August 20, 2010 Immigration Customs Enforcement (ICE) has issued a memo stating that it will terminate removal proceedings (deportations) in some adjustment of status cases that are ultimately going to result in obtaining a permanent residence. This is a well applauded memo by most pro immigration entities. However, anti-immigration groups have labeled it as “backdoor amnesty”. A closer look at the memo reveals that the reasoning of ICE is well founded both in terms of economic and judicial interest. Indeed if someone is going to get a permanent residence anyway, and is awaiting simply for the USCIS (United States Citizenship and Immigration Services) to adjudicate the case, common sense dictates that such a case should not longer be in an immigration court. Shah Peerally Law Group PC applauds such a move.
You can read the memo on the link that follows
ICE Controversial Memo

There are two nonimmigrant visa categories for persons who want to participate in Exchange Visitor programs in the United States. The J nonimmigrant visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs. The Q nonimmigrant visa is for international cultural exchange programs designated by USCIS. For more information on Exchange Visitors, see the “Department of State: Exchange Visitor (J) Visas” link to the right.

You may be eligible for a Q-1 nonimmigrant visa if you are seeking to participate in an international cultural exchange program. The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States.
Eligibility Criteria

Only employers who administer cultural exchange programs are allowed to petition for Q nonimmigrants. The purpose of the Q nonimmigrant visa is to facilitate the sharing of international cultures. It is an employment oriented program, but an integral part of your duties must have a cultural element. You must be at least 18 years old and be able to communicate effectively about the cultural attributes of your country.
Application Process

Your sponsoring organization must file Form I-129, Petition for Nonimmigrant Worker, with the USCIS office specified in the form instructions (see the “Form I-129, Petition for Nonimmigrant Worker” link to the right). In addition, the employer must submit evidence that the employer maintains an established international cultural exchange program. This may be demonstrated by submitting copies of catalogs, brochures or other types of material which illustrate that the cultural component of the program is designed to give an overview of the attitude, customs, history, heritage, philosophy, tradition and/or other cultural attributes of the participant’s home country. The employer may also submit evidence which illustrates that the program activities take place in a public setting where the sharing of culture can be achieved through direct interaction with the American public or a segment thereof.

In addition, the employer must establish that:

* It has designated a qualified employee to administer the program and serve as liaison with USCIS
* It will offer the alien wages and working conditions comparable to those accorded local workers similarly employed
* It has the financial ability to compensate the participant(s), as shown by a copy of the employer’s most recent annual report, business income tax return or other form of certified accountant’s report

Period of Stay/Extension of Stay -Initial Period of Stay-
Up to 15 months

After you complete your Q cultural exchange program, you are afforded 30 days to depart the United States. You are required to spend 1 year outside the United States before you can apply for participation in the Q cultural exchange program again.
Family of Q Visa Holders

The Q nonimmigrant visa does not have a provision for any spouse or children to accompany or follow to join a Q-1 nonimmigrant. Therefore, any spouse or children must qualify for a visa classification for which they may be eligible.

Having dealt with Immigration Services under the Department of Homeland security for years, our law firm has noticed a few common mistakes made by our patrons when dealing with this department. This short article tries to point out these common mistakes.

Note this article does not include all possible errors. We highly recommend you seek professional assistance when dealing       with any entity of the United States Immigration Services.

>>Read More>>

On August 20, 2010, a three judge panel of the Ninth Circuit reversed and remanded for further proceedings, the district court’s decision (2009 WL 799683) allowing religious workers to file their adjustment of status applications concurrently with the organizations’ I-360 petition. RuizGarcia v United Sates2, No. 09-35734 (9th Cir. Aug. 20, 2010). Religious workers will not be able to file concurrently their I-360 and I-485 (adjustment of status) applications.

The law is not in effect yet, so those wishing to file should do it quickly.

Contact our law firm on 510 742 5887 or info@peerallylaw.com for more information

Arrests part of ICE’s national anti-gang effort — Operation Community Shield

LAS VEGAS – A total of 35 individuals with ties to more than a dozen different street gangs are facing criminal charges or deportation following a three-day, multi-agency enforcement action in the Las Vegas area spearheaded by the U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI).

The arrests were made as part of Operation Community Shield, an ongoing initiative by ICE-HSI’s National Gang Unit in which the agency uses its powerful immigration and customs authorities in a coordinated strategy to attack and dismantle criminal street gangs across the country. As part of the initiative, ICE partners with other federal, state and local law enforcement agencies to target the significant public safety threat posed by transnational gangs.

Of the gang members and gang associates arrested during the enforcement action that concluded late Thursday, six are currently facing prosecution on state criminal charges, including outstanding warrants for gang-related violations. A seventh individual, and two of the subjects arrested on state charges, will also be presented to the U.S. Attorney’s Office for prosecution for felony re-entry after deportation, a federal violation that carries a potential penalty of up to 20 years in prison.

“This effort shows our collective resolve in the Las Vegas area to attack and dismantle these dangerous street gangs,” said Richard Curry, assistant special agent in charge for ICE-HSI in Las Vegas. “For too long, gangs here and elsewhere have used violence and intimidation to hold communities hostage. As this operation shows, now it’s the gang members who have something to fear.”

Among those arrested during the enforcement action was a 26-year-old previously deported Mexican national with ties to the Park Avenue street gang who has prior arrests for weapons charges and drug possession. Another of the individuals taken into custody was an 18-year-old Mexican national member of the 18th Street gang who had been previously arrested for attempted murder for his role in a drive-by shooting.

ICE received substantial assistance with this week’s operation from the Nevada Department of Public Safety (two divisions, Probation and Parole and Investigations); the Las Vegas Metropolitan Police Department; the Mesquite Police Department; and the North Las Vegas Police Department.

Three of the gang members and gang associates arrested during the operation are U.S. citizens. The remaining 32 individuals are foreign nationals. The majority of the foreign nationals are from Mexico (27), but the group also includes citizens from six other countries: El Salvador, the Philippines, Honduras, Cuba, Guatemala and Laos. Those foreign nationals who are not being prosecuted on criminal charges are being processed for removal from the United States.

Since Operation Community Shield began in February 2005, ICE agents nationwide have arrested more than 18,000 gang members and gang associates. As part of the effort, HSI’s National Gang Unit identifies violent street gangs and develops intelligence on their membership, associates, criminal activities and international movements to deter, disrupt and dismantle gang operations. Transnational street gangs have significant numbers of foreign-born members and are frequently involved in human and contraband smuggling, immigration violations and other crimes with a connection to the border.

To report suspicious activity, call ICE’s 24-hour toll-free hotline at: 1-866-347-2423 or visit www.ice.gov.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

Also to qualify, the named employee must

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
• Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.  Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for more complete definitions.

New Offices

For foreign employers who are seeking to send an employee to the United States as an executive or manager in order to establish a new office, it must also be shown that

• Sufficient physical premises to house the new office have been secured
• The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
• The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

See 8 CFR 214.2(l)(3)(v) for details.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.  If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on Form I-539.  Spouses of L-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  In order to establish eligibility for blanket L certification, the employer

• And each of the qualifying organizations must be engaged in commercial trade or services
• Must have an office in the United States which has been doing business for one year or more
• Must have three or more domestic and foreign branches, subsidiaries, and affiliates
• Must meet one of the following criteria
  • Along with the other qualifying organizations, have obtained at least 10 L-1 approvals during the previous 12-month period; or
  • Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
  • Have a U.S. work force of at least 1,000 employees.

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification.  It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.  In most cases, once the blanket petition has been approved, the employer need only complete Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send it abroad to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer.

See 8 CFR 214.2(l)(4) and 8 CFR 214.2(l)(5) for more details regarding blanket petitions.