Immigration
Few Appealed L-1A Managerial/Executive Cases are Successful
A recent review of more than 100 L-1A intracompany transferee petitions in 2013 denied by the United States Citizenship and Immigration Services (USCIS) and subsequently appealed administratively reveals that only a handful of cases were ultimately approved. Among petitions for new office extensions, the following are some common fatal flaws cited by the government’s Administration Appeals Office: (1) contradictory evidence in the record, including organizational charts that were inconsistent; (2) managers and executives spending too much time doing the actual work and not managing or directing; (3) lack of evidence of personnel or staff to perform nonqualifying (i.e., nonmanagerial or nonexecutive) duties; (4) vague or overly broad job descriptions; and (5) insufficient evidence to demonstrate how the business will support the manager or executive in the year to come. Many of these same issues derailed initial new-office L-1A petitions. Given that new office L-1A extensions are closely scrutinized as are initial petitions, and request for evidence (RFE) rates have been upwards of 40 percent, employers are advised to carefully prepare and review supporting documentation with these pitfalls in mind. It might be better to defer the L-1 application until the U.S. business is well established.
Probation versus Suspended Sentence: What’s the Difference Under U.S. Immigration Law?
Under U.S. immigration law, there is a world of difference between being sentenced to probation and being sentenced to jail but with the jail term suspended. The latter can have dire immigration consequences, even though there may be no meaningful consequences under state criminal law.
Under U.S. immigration law, a suspended term of jail or imprisonment for a criminal offense is considered the same as actually serving that time in prison. Rather than classification of the crime, the law looks at the term of imprisonment. This means that it usually doesn’t matter whether the offense is classifiable as a felony or misdemeanor. The length of the sentence is especially important because the provisions that refer to “removability” often reference the term of imprisonment to determine whether a person is removable from the U.S. for the crime. The length of sentence, in turn, also determines whether there is relief available in the form of a waiver from deportation. This is true whether an individual is on a nonimmigrant visa or is a permanent resident.
Most people aren’t criminals and don’t engage in behavior that is normally considered felonious. But, let’s look at shoplifting. Often, an individual convicted for misdemeanor shoplifting is sentenced to one year suspended. Perhaps the criminal defense attorney recommended this strategy because it means no jail time, no felony under state law, and even an eventual expungement of the record. The result is no criminal record of consequence. Not so under immigration law. Immigration law states that if an individual is sentenced to a year or more for a theft crime, then the crime shall be classified as an “aggravated felony,” even if the original crime was classified as a misdemeanor. An aggravated felony charge under immigration law is extremely serious. It almost always means that the individual — lawful permanent resident and nonimmigrant alike — will be placed in “mandatory detention” and cannot be released on bond. Furthermore, with the current backlog in the immigration courts, such a person detained under the “mandatory detention” provisions will be held for many months awaiting a hearing before an immigration judge. Finally, a charge of “aggravated felony” limits the availability of relief from deportation that may be available. Thus, even long-time permanent residents who are convicted of an aggravated felony can and often are deported to their home country.
The important lesson here for both nonimmigrants and immigrants is to carefully abide by the laws of this country, because even a minor infraction can have serious consequences. In case of an arrest, it is vital that an immigration lawyer be retained to advise the criminal lawyer on possible dispositions that will not result in removability or other longer-term immigration consequences. A permanent resident should always apply for naturalization as soon as possible so as not to become subject to removal from the U.S. Finally, if one has an arrest record of any kind, it is important to seek qualified immigration counsel before traveling abroad, renewing the green card, or applying for naturalization.
NIV and IV Application Fees Change
Nonimmigrant and immigrant visa application fees paid to the U.S. Department of State (DOS) for certain visa categories changed on Sept. 12, 2014. DOS advises that all visa applicants must pay the fee amounts in effect on the day they pay, with the exception of immigrant visa application processing fees paid domestically to the National Visa Center, which will be effective as of the date of billing. Fees that decreased are not refundable. If, however, a nonimmigrant visa fee was paid before Sept. 12, 2014, and the visa interview is on or before Dec. 11, 2014, the applicant does not have to pay the increased difference between the new and old fee amounts. If, however, the visa fee was paid before Sept. 12, 2014, and the visa interview is on or after Dec. 12, 2014, the applicant will have to pay the difference.