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Work Visas

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Over 15,000 Readers Across 140 Countries – Miami Visa Help Blog Thanks You, Readers


Miami Visa Help by Miami International Attorneys has just reached over 15,000 views by readers in 140 countries. We thank our interested readership on this niche topic and are glad to continue providing free legal information to those who need it.

If you have any issues that you wish addressed, please contact Miami International Attorneys, P.L., at abernhard@miapl.com, 786-566-1969, www.miapl.com.

Miami International Attorneys, P.L.

Miami International Attorneys, P.L.

L1 Visa Requirements by Miami International Attorneys


The L1 visa requirements must be fulfilled to achieve an L1 visa. An L1 visa allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the U.S. An L1 visa also lets a foreign business send an executive or manager to set up a business in the U.S. An L1 visa is often referred to as a visa L1 or visa L1A USA, an L-1 visa, an L visa, and an L1a visa. These are basically all the same visa. The employer (the U.S. business) must file a Form I-129 and fee on behalf of the employee (the beneficiary). Miami International Attorneys breaks down the requirements to obtain an L1 visa as follows:

(1) The qualifying relationship between the U.S. business and the non-U.S. businesses;

(2) The qualifying employer-employee relationship;

(3) The qualifying work role of the beneficiary (capacity);

(4) The beneficiary’s qualifying sufficient time working at the non-U.S. business; and

(5) The qualifying physical workspace secured in the U.S.

(1) The qualifying relationship between the U.S. and non-U.S. businesses:

The petitioning U.S. entity must have a qualifying relationship with your entity abroad.

The new U.S. office must have a corporate relationship with your foreign entity abroad where you have been employed as a manager, executive, or worker with specialized knowledge. This means that the new U.S. office must be a parent, affiliate, subsidiary, or branch of the foreign entity, and that both the U.S. office and the foreign entity must continue to share common ownership and control.

Evidence of General Qualifying Relationship:

The following is good evidence that the new U.S. business has a qualifying relationship with a foreign company (we note that the more evidence you provide, the better):

(a) The non-U.S. business’s articles of incorporation and the U.S. business’s articles of incorporation, showing common ownership of the U.S. and non-U.S. businesses;

(b) The non-U.S. business’s annual reports describing the corporate structure (and showing the placement of the U.S. business within that structure);

(c) The non-U.S. business’s licenses or other documents showing common ownership of the U.S. business;

(d) The non-U.S. business’s contracts or other documents detailing the affiliate relationship with the U.S. business;

(e) The non-U.S. business’s corporate filings and the U.S. business’s corporate filings describing the corporate relationship;

(f) The non-U.S. business’s other documents showing ownership and control over the U.S. and foreign entities, including stock purchase agreements, voting rights agreements, capitalization tables, term sheets, etc.—in other words, corporate documents showing the corporate relationship between the non-U.S. business and the U.S. business.

Evidence of Subsidiary Relationship:

The key factor in a subsidiary relationship is control. The USCIS defines subsidiary as a an entity of which a parent: (i) owns, directly or indirectly, more than half the entity and controls the entity; or (ii) owns, directly or indirectly, half the entity and controls the entity; or (iii) owns, directly or indirectly, 50% of a 50-50 joint venture and has equal control and veto power over the entity; or (iv) owns, directly or indirectly, less than half of the entity, but in fact controls the entity. If you are filing your petition as a subsidiary, you must provide a detailed list of the owners of the non-U.S. businesses and the U.S. businesses showing percentage of ownership. This detailed list must have supporting documentation.

Evidence of Affiliate Relationship:

The USCIS defines affiliates as one of two subsidiaries owned and controlled by the same parent or individual, or the same group of individuals, each owning and controlling the same share of proportion of each entity. Affiliate companies must provide a detailed list of the owners of the non-U.S. and U.S. businesses, including percentage of ownership. This detailed list must have supporting documentation.

Evidence of Buyout to Create Relationship:

If you are purchasing an existing business to create the necessary corporate relationship, then you must provide a copy of your stock purchase agreement an any other relevant documentation showing the buyout.

(2) The qualifying employer-employee relationship

The petitioning non-U.S. business must show that both the employer and employee qualify for the L1. The employer is the U.S. business. The employee is the beneficiary travelling to the U.S. for work.

The Qualifying Employer

A qualifying employer U.S. business must (i) have a qualifying relationship with a non-U.S. company (see qualifying relationship, above); and (ii) currently be or will be doing business as an employer in the U.S. and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the U.S. as an L1. The U.S. business must be viable, though not necessary engaged in international trade.

Doing Business

The key factor is that the U.S. business is actually doing business, which means regular, systematic, and continuous provision of goods and/or services by a qualifying organization. Doing business does not include the mere presence of an agent or office of the qualifying organization in the U.S and outside the U.S.

The Qualifying Employee

A qualifying employee beneficiary of the U.S. business must (i) generally have been working for a qualifying organization abroad for 1 continuous year within the 3 years immediately preceding his or her admission to the U.S.; and (ii) be seeking to enter the U.S. to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations (see qualifying relationship, above).

Executive Capacity and Managerial Capacity

The USCIS treats executive capacity as the employee’s ability to make decisions of wide latitude without much oversight. The USCIS treats managerial capacity as the ability of the employee to (i) supervise and control the work of professional employees and (ii) to manage the organization, or a department, subdivision, function, or component of the organization, or (iii) to manage an essential function of the organization at a high level, without direct supervision of others.

(3) The qualifying work role of the beneficiary (capacity):

The beneficiary worker must have been employed as a manager, executive, or worker with specialized knowledge at the non-U.S. business. You must submit evidence to demonstrate that your non-U.S. employment was in a managerial, executive, or specialized knowledge capacity. Regarding specialized knowledge, the USCIS requires your business knowledge to be special or of an advanced level; however, the USCIS does not require your knowledge to be unique or proprietary, nor is there a U.S. labor market test required before you can be admitted as an L1 specialized knowledge employee.

Evidence of Qualifying Capacity:

The following is good evidence that your overseas employment was in a qualifying capacity (we note that the more evidence you provide, the better):

(a)    The non-U.S. business’s organization charts showing your position;

(b)   The non-U.S. business’s documents or patents showing the non-U.S. business’s technology, products, or services that are based on your work (your name should be referenced in these documents);

(c)    The non-U.S. business’s performance reviews of your work at the non-U.S. business;

(d)   Documents of loans and financing on behalf of the non-U.S. business, with your name on them;

(e)    The non-U.S. business’s own organizational job descriptions for your position and the positions that reported above and below you;

(f)     Your own resume describing your job accomplishments.

(4) The qualifying sufficient time working at a non-U.S. business:

The beneficiary worker must have been employed at the non-U.S. business for 1 out of the last 3 years.

Evidence of Years Abroad:

The following is good evidence that you have worked the required amount of time abroad (we note that the more evidence you provide, the better):

(a) The non-U.S. business’s pay stubs reflecting payment for work at the non-U.S. business during the required time periods;

(b) The non-U.S. business’s payroll records reflecting payment for work at the non-U.S. business during the required time periods;

(c) Your own tax returns from the non-U.S. country reflecting payment for work at the non-U.S. business during the required time periods;

(d) The non-U.S. business’s documents reflecting your work product at the non-U.S. business during the required time periods.

(5) The qualifying physical workspace secured in the U.S.:

The petitioner must have leased sufficient space to do business in the U.S. While the amount of physical workspace may vary from business to business, the petitioner must show that an appropriate space is secured by lease, purchase, incubator, or otherwise.

Evidence of Sufficient Workspace:

The following is good evidence that you have obtained sufficient workspace (we note that the more evidence you provide, the better):

(a) The business’s signed lease agreement;

(b) The business’s mortgages, deeds, or other proof of real estate purchase;

(c) The business’s business plan, marketing materials, or other descriptions connecting the activity of the business with the space acquired (this is necessary to show that the workspace is appropriate to the business plan);

(d) A written explanation of how the workspace acquired is sufficient for your particular business.

Evidence of Incubator and New Office Space:

If you have not leased or purchased your workspace, then you must specifically explain the type of space you secured and provide additional evidence of your eligibility, including by an agreement from the incubator provider confirming that you are using the incubator space. If you are filing for a new office, you must provide the formal business plan (with executive summary) showing the size of the U.S. investment and your ability to commence doing business in the U.S.

If you have questions on the interpretation of the immigration laws governing adjustment of status, you should contact our immigration lawyers and abogados de inmigracion. We can give you personal and immediate immigration help and legal aid from an immigration lawyer.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys atwww.miamivisahelp.com.

Miami International Attorneys, P.L.

what is a j1 visa


J1 Visa Summer Work Travel Basic Information

 

What is a j1 visa? According to the U.S. State Department, College and University students enrolled full time and pursuing studies at post-secondary accredited academic institutions located outside the United States come to the United States to share their culture and ideas with people of the United States through temporary work and travel opportunities. The Summer Work Travel program provides foreign students with an opportunity to live and work in the U.S. during their summer vacation from college or university to experience and to be exposed to the people and way of life in the United States.

 

UGA students at ASAP conference

UGA students at ASAP conference (Photo credit: Auburn Alumni Association)

 

There are generally four parties involved in a Summer Work Travel venture: (1) the Student; (2) the Sponsor; (3) the Host Employer; and (4) the U.S. Government.

 

For the first three parties, the U.S. Government provides the following requirements:

 

Basic requirements of Summer Work Travel Students

 

  • You must be sufficiently able to speak English, so that you can interact in an English speaking social and scholastic atmosphere;
  • You must be a post-secondary school student, enrolled in and actively pursuing a degree or other full-time course of study, at an accredited classroom-based post-secondary institution outside the United States;
  • You must have successfully completed at least one semester or equivalent of post-secondary coursework; and
  • You must be pre-placed in a job (you Sponsor) prior to entry unless from a visa waiver country.

    Students

    Students (Photo credit: Editor B)

 

To apply for a J1 Summer Work Travel experience, a student should contact an official designated sponsor, as discussed below. The designated sponsors supervise the application process and are the main point of contact throughout the exchange program process. You should also familiarize yourself with the DS-2019 FORM (the “Certificate of Eligibility for Exchange Visitor (J-1) Status.” This is the basic document used for administration of the exchange program. Designated sponsors are authorized to issue this form to prospective exchange visitors they have screened and selected for participation in the exchange visitor program. The Sponsor usually fills out the DS-2019 for you. After you have coordinated with a Sponsor and submitted the DS-2019, you will have to seek and attend an interview at a U.S. embassy or consulate in your country to obtain the J1 visa. The Consular Office then decides whether to accept you into the U.S. Summer Work Travel program.

 

 

 

Basic requirements for Summer Work Travel Sponsors

 

  • You must provide pre-arranged and fully-vetted employment to all participants who are not from a visa waiver country.

    Visa Waiver Program Countries

    Visa Waiver Program Countries (Photo credit: Wikipedia)

  • Provide all participants, prior to entry:
    • A copy of the Department of State Summer Work Travel Program Brochure;
    • The Department of State’s toll-free emergency hotline telephone number;
    • The sponsor’s 24/7 immediate contact telephone number;
    • Information advising participants of their obligation to notify their sponsor when they arrive in the United States and to provide information of any change in jobs or residence; and
    • Information concerning any contractual obligations related to participants’ acceptance of paid employment in the United States, if pre-arranged.
  • If you are sponsoring students from a Visa Waiver Program country, you must:
    • Ensure that participants entering the United States without prearranged employment have sufficient financial resources to support themselves during their search for employment;
    • Provide such participants with information on how to seek employment and secure lodging in the United States before they depart their home countries; and
    • Provide participants with a job directory that includes at least as many job listings as the number of participants in their program who are entering the United States without prearranged employment.
  • You must undertake reasonable efforts to secure suitable employment for participants unable to find jobs on their own after one week;
  • You must inform program participants of Federal Minimum Wage requirements and ensure that, at a minimum, participants are compensated at the prevailing local wage, which must meet the higher of either the applicable state or the Federal minimum wage requirement, including payment for overtime in accordance with state-specific employment; and
  • You must maintain, at a minimum, a monthly schedule of personal contact with the program participants (in-person, by telephone or via-electronic mail), document such contact, and ensure that issues affecting the health, safety and welfare of participants are addressed immediately.

    Students

    Students (Photo credit: Fox Cities Book Festival)

 

The U.S. Government has a list of official designated sponsor organizations in each state. These Sponsors have official locations in a particular city, but many Sponsors can place Students anywhere in the U.S., regardless of the Sponsor’s official location. Florida currently (August 2013) has five Sponsors:

 

Janus International Hospitality Student Exchange; 2300 Corporate Blvd. NW, Suite 232, Boca Raton, FL 33431 (804-876-3888).

 

Walt Disney World and Walt Disney World Co.; Immigration Compliance Department 12450 State Road 535, W-113, 32830; Lake Buena Vista, FL (407-828-4626).

 

A Cultural Exchange Service, Inc., and Life Adventures, Inc.; 14258 Creek Run Drive, Riverview, FL 33579 (866-401-8910).

 

American Hospitality Academy; Attention Karin Morrison, 240 Key Honey Lane, Tavernier, FL 33070 (305-395-8881).

 

Requirements for Summer Work Travel Host Employers

 

  • You must provide participants the number of hours of paid employment per week as identified on the job offer and agreed to when the sponsor vetted the jobs;
  • You must pay those participants eligible for overtime worked in accordance with applicable state or federal law;

    Students Walking

    Students Walking (Photo credit: University of Denver)

  • Notify sponsors promptly when participants arrive at the work site and begins their programs; when there are any changes or deviations in the job placements during the participants’ programs; when participants are not meeting the requirements of job placements; or when participants leave their position ahead of their planned departure; and
  • Contact sponsors immediately in the event of any emergency involving participants or any situation that impacts the health, safety or welfare of participants.

 

Contact your local immigration attorney for help starting your J1 Summer Work Travel experience or to host a traveler.

 

 

 

Until next time. Stay tuned.

 

 

 


Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

 

DOMA and Gay Immigration


 

 

“A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.” – Chief Judge Dennis Jacobs, United States Second Circuit Court of Appeals, Windsor v. U.S.

 

Pro and anti-Proposition 8 protesters rally in...

Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall as the California Supreme Court holds a session in the to determine the definition of marriage (Strauss v. Horton cases). (Photo credit: Wikipedia)

 

Many are heralding the Supreme Court decision striking down DOMA, Windsor v. U.S., as a watershed moment for same-sex couples seeking immigration benefits. Because the Windsor decision is so fresh, and because the decision may have striking implications for the gay immigrant community, MIA provides this tutorial of the Windsor decision to illuminate the background, meaning, and effect on same-sex immigration.

 

You may be asking the following questions:

 

What is DOMA?

 

What is same sex marriage law?

 

What is the law on gay marriage?

 

What are gay marriage rights?

 

What are arguments for gay marriage?

 

How does DOMA affect gay immigration?

 

This article is designed to provide a tutorial of the DOMA decision for same-sex couples hoping for federal immigration benefits.

 

 

 

 

 

What is DOMA?

 

In 1996, as some states began to consider same-sex marriage, Congress enacted the Defense of Marriage Act (“DOMA”).

 

The entire DOMA is less than 350 words, and reads in pertinent part:

 

An Act to define and protect the institution of marriage.

 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 

SECTION 1. SHORT TITLE.

 

This Act may be cited as the “Defense of Marriage Act”.

 

SEC. 2. POWERS RESERVED TO THE STATES.

 

(a) In General. The United States Code is amended by adding the following:

 

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such  relationship.”

 

SEC. 3. DEFINITION OF MARRIAGE.

 

(a) In General. The United States Code is amended by adding at the following:  `

 

Definition of “marriage” and “spouse”: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. Approved September 21, 1996.

 

 

 

As you can see, DOMA contains to operative sections. Section 2 allows states to refuse to recognize same-sex marriages that occurred in other states. For example, where Canada, New York, Massachusetts, or Vermont may recognize same-sex marriage, North Dakota may not. If a same-sex couple gets married in Vermont, North Dakota does not have to recognize that marriage in North Dakota, under Section 2 of DOMA. Section 2 remains intact today.

 

Section 3 amends the Dictionary Act to provide a federal definition of “marriage” and “spouse.” This section 3 does not prohibit the states from making laws that recognize same-sex marriages or providing state benefits to same-sex couples. However, Section 3 does prohibit same-sex couples to collect federal benefits provided to couples. This is the part of DOMA that is no longer in effect.

 

 

 

Why does DOMA matter?

 

DOMA matters both in principle and in practicality. In principle, DOMA plays a role in the debate as to whether we, as a society, should recognize the legitimacy and propriety of homosexuality in general, and whether we, as a society, should treat gay individuals and couples as equals.

 

English: Another version of the same-sex marri...

English: Another version of the same-sex marriage map. (Photo credit: Wikipedia)

 

In practicality, DOMA either provides or removes federal government benefits to same-sex couples. Keep in mind the difference between state government benefits and federal government benefits.

 

For example, Florida provides these state benefits: Florida Food Assistance Program (food stamps), Florida KidCare (low-cost health insurance for kids), Florida Low-income Home Energy Assistance (home heating and cooling), Florida Medicaid, Florida unemployment pay, Florida home weatherization, etc. Florida, as a state, also provides a homestead protection to spouses, restraining a homeowner from selling or devising a house without the approval of his or her spouse, and providing property tax breaks. Under DOMA, Florida could make law to extend these benefits to spouses in same-sex couples, particularly the homestead exceptions.

 

Federal benefits are different, and include social security (surviving spouses receive federal social security and support), tax breaks (there are nearly 200 federal tax provisions that account for marital status, including for estate and retirement money), family and medical leave (guarantees leave from work to care for spouses), government employee benefits for spouses, COBRA health care coverage for former employees, and immigration (almost 75% of all green cards or immigrant visas issued are granted to family members of permanent residents). Under DOMA, the federal government could not extend any of these benefits to spouses in same-sex couples.

 

 

 

Before DOMA: Baker v. Nelson

 

The major case to come before the Supreme Court on the issue of gay marriage was Baker v. Nelson, back in 1972. In Baker, somebody challenged the legality of a Minnesota state law that denied a marriage license to a same-sex couple. The denied couple brought a lawsuit (an action) against the state of Minnesota, arguing that “the right to marry without regard to the sex of the parties is a fundamental right,” and “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” The Supreme Court ruled that the use of the traditional (man and woman) definition of marriage by a state, in a state law, for that state’s own regulation of marriage status did not violate the United States Constitution. The distinctions between the Minnesota law in Baker and the federal law in DOMA are that (1) the government making the law is different (Minnesota state congress vs. U.S. federal congress); (2) the law works in different ways (Minnesota law precluded Minnesota government from issuing a same-sex marriage license, DOMA redefines the meaning of “spouse” and “marriage” for over 1,000 different federal laws on various issues, including all federal benefits); (3) the law effects a different number of people (Minnesota law effected only people living in Minnesota vs. DOMA effected the entire country); and (4) the laws were enacted at different times (Minnesota enacted before 1970 vs. DOMA enacted in 1996).

 

 

 

Marriage Day

Marriage Day (Photo credit: Fikra)

 

Before DOMA: Baehr v. Lewin (Baehr v. Miike)

 

Baehr was a lawsuit filed in 1990 in which three same-sex couples argued that Hawaii’s law prohibiting same-sex marriage violated the Hawaii state constitution. The couples applying to Hawaii’s Department of Health for a marriage license met all of Hawaii’s requirements to marry except that they were same-sex couples. Hawaii’s Attorney General advised the Hawaii Department of Health that only different-sex couples had a fundamental right to marry, and so the Hawaii Department of Health denied a marriage license to these same-sex couples. When the same-sex couples’ lawsuit reached the Hawaii Supreme Court, that court decided that denying a marriage license to same-sex couples was discrimination that required a strictly-scrutinized justification, meaning the Hawaii government had to prove that the discrimination furthered “compelling state interests and was narrowly drawn to avoid unnecessary abridgements of constitutional rights.”

 

The Baehr case had an enormous impact. Primarily, it scared many in the U.S. federal congress. While drafting DOMA, the U.S. federal congress said that DOMA was “a response to a very particular development in the State of Hawaii. The state courts in Hawaii appear to be on the verge of requiring that State to issue marriage licenses to same-sex couples. The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.”

 

 

 

Why did the U.S. Congress enact DOMA in 1996?

 

One obvious justification is fear, as can be seen in the U.S. federal congress comments on the Baehr case, above. The U.S. Congress also provided several justifications for enacting DOMA to permanently define “marriage” and “spouse” to exclude same-sex couples on a federal, countrywide level. Those justifications were: (1) defending and nurturing the traditional institution of marriage; (2) promoting heterosexuality; (3) encouraging responsible procreation and childrearing; (4) preserving scarce government resources; and (5) defending traditional notions of morality.

 

Doma

Doma (Photo credit: Wikipedia)

 

Keep in mind that a New York federal court fully analyzed “every conceivable basis which might support [DOMA],” and found that these justifications were absolutely irrational. See Windsor v. U.S., 833 F.Supp. 2d 394, 403–06 (S.D. N.Y., June 6, 2012).

 

 

 

Who challenged the legality and constitutionality of DOMA?

 

Edie Windsor, an 84-year-old woman residing in the state of New York, challenged the constitutionality of DOMA. Her personal conflict with the provisions of the DOMA law came out of her relationship with another woman, Thea Spyer, who she met in 1963 in New York City. Windsor and Spyer began a committed relationship. They registered as domestic partners in New York in 1993, and married in Canada in 2007. Because of DOMA’s definition of “marriage” and “spouse,” Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law.

 

 

 

Why did Edie Windsor challenge DOMA?

 

When Windsor’s partner, Thea Spyer, died in 2009, Spyer left all of her possessions and money (her estate) to Windsor.

 

Often, recipients of an estate must pay federal taxes on the money that they inherit. However, if a couple is married and one spouse dies, the surviving spouse doesn’t have to pay taxes on the estate until he or she also dies. This is called the marital tax deduction under federal law. Of course, because Windsor and Spyer were not eligible for recognition as a married couple under U.S. federal law, Windsor could not claim this marital deduction under federal law.

 

Because Windsor was not eligible for a marital tax deduction under DOMA, she had to pay $363,053 in taxes to the U.S. government.

 

Marriage

Marriage (Photo credit: Lel4nd)

 

 

 

How did Edie Windsor challenge DOMA? – the 5th Amendment

 

Edie Windsor sued the United States of America for a refund of the taxes she paid. In order to get a refund, she argued that she was improperly denied recognition as “spouse” of Thea Spyer. In order to prove that she was improperly denied recognition, Windsor argued that DOMA was an invalid law. To prove that DOMA was invalid, Windsor said that it contradicted the 5th Amendment of the U.S. Constitution, which states:

 

English: United States Supreme Court building ...

English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)

 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

U.S. Courts have interpreted the statement that “No person shall . . . be deprived of . . . property, without due process of law” to mean that all people should get equal protection under the laws. Thus, Windsor argued, the 5th Amendment requires that she and Spyer be given equal protection as all other married couples in the U.S. If DOMA did not recognize their marriage simply because they were both women, then DOMA did not give them the equal protection afforded to same-sex couples, as required by the 5th Amendment.

 

Said in the reverse order, Windsor argued:

 

Married couples normally get tax deductions > DOMA prohibits some married couples from getting tax deductions (i.e. discrimination) > prohibiting only some couples from tax deductions is unequal discrimination > the 5th Amendment requires equality > thus, DOMA is unenforceable under the 5th Amendment > DOMA cannot prohibit federal law from recognizing my marriage > I should have gotten a marital deduction > the U.S. government must pay back my $363,053 in taxes.

 

 

 

What did Windsor have to prove to win?

 

Windsor had to prove that the discrimination in DOMA was not substantially related to an important government objective. In other words, she had to show that the U.S. government did not have some important goal that it was trying to further that required discrimination against same-sex couples.

 

 

 

Why did the U.S. government say that discrimination of same-sex couples was necessary?

 

As discussed above, the U.S. governments argued that it was necessary to discriminate against same-sex couples for the following five reasons:

 

(1) to defend and nurture the traditional institution of marriage; (2) to promote heterosexuality; (3) to encourage responsible procreation and childrearing; (4) to preserve scarce government resources; and (5) to defend traditional notions of morality.

 

 

 

What did the U.S. Supreme Court say about Windsor’s arguments?

 

U.S. Supreme Court, 1998.

U.S. Supreme Court, 1998. (Photo credit: Wikipedia)

 

The Court pointed out that:

 

(1) a government cannot punish the private, consensual sexual intimacy between two adult persons, as that is simply not the role of the U.S. government;

 

(2) the federal government rarely involved itself in legal issues regarding family, as family law is traditionally determined by the local governments;

 

(3) the discriminatory provisions of DOMA placed a stigma upon all people who had entered into same-sex marriages made lawful by the local governments;

 

(4) DOMA’s discrimination appeared to be a bare desire to harm a politically unpopular group.

 

In conclusion, the U.S. Supreme Court stated: “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Thus, DOMA is unconstitutional and unenforceable.

 

In essence, Windsor won, and the U.S. government had to repay Windsor the $363,053 in taxes.

 

"Lesbian" wedding mock-cake at the R...

“Lesbian” wedding mock-cake at the Roma Gay Pride in 2008. Picture by Stefano Bolognini, June 7 2008. (Photo credit: Wikipedia)

 

 

 

What does this mean for immigration?

 

Because DOMA is unenforceable, each state gets to determine whether it recognizes same-sex marriages. If a state recognizes the same-sex marriage, then the federal government must recognize that marriage as a valid marriage, and those spouses as entitled to federal benefits for married couples—including immigration benefits.

 

This means that if an American woman marries a woman from Mexico, the Mexican woman is eligible for a spouse’s derivative work visa or sponsorship for a marriage-based green card. A U.S. citizen can now marry his or her same-sex partner and apply for naturalization proceedings. A U.S. citizen may even marry his or her same-sex partner and petition for naturalization, even if they don’t live in a state that recognizes gay marriage.

 

The takeaway is that homosexuality as a particular social group providing for international and national protection is taking hold. The idea has taken root, and the seas are changing. It will now be more interesting to see how the Courts interpret asylum petitions based on sexual orientation as we move forward.

 

Until next time. Stay tuned.

 


Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

 

For more answers to your questions, contact abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

 

Information on the H-1B Visa


– Information on the H-1B Visa

 

Engineering Class, 1943

Engineering Class, 1943 (Photo credit: Duke Yearlook)

 

If you are asking,

 

“What is an H-1B Visa?” or “How do I complete the H-1B Petition?”

 

This short article on how to fill out an H-1B Visa application is for you.

 

 

 

 

What is the H-1B Visa?

 

According to the United States Citizenship and Immigration Services (USCIS), the H-1B is a nonimmigrant temporary visa used to work in a specialty occupation, including fashion models of distinguished merit and ability, government-to-government research and development, and co-production projects administered by the Department of Defense.

 

By nation in 2005

By nation in 2005 (Photo credit: Wikipedia)

 

The H-1B Visa requires a higher education degree or its equivalent. According to the USCIS, businesses in the U.S. use the H-1B visa system to hire foreign workers in specialty occupations requiring expertise in specialized fields. This H-1B Visa is for scientists, engineers, computer programmers, and the like.

 

The USCIS’s recent posting on the 2014 H-1B Cap Seasons can be found here.

 

What is the H-1B Cap?

 

English: H1B issuance by nation for 2006 to 20...

English: H1B issuance by nation for 2006 to 2008. Source: http://immigrationroad.com/visa/h1b-worker/h1b-visa-statistics.php (Photo credit: Wikipedia)

 

The H-1B cap is the government’s limitation on how many H-1B visas it will issue. The H-1B Visa regular cap is 65,000 visas, and the H-1B Visa’s Master’s Exemption cap amount is 20,000 visas. Those wishing to submit an H-1B visa application must keep in mind that the 2014 Cap season began on April 1, 2013.

 

What are exemptions to the H-1B Cap?

 

Not all H-1B applicants are subject to the yearly cap. In fact, some 6,800 visas are set aside every year for the U.S.-Chile and U.S.-Singapore Free Trade Agreements. If all of these 6,800 Chile and Singapore specials are not taken, then the extras are added in the next year. Other applicants are exempt from the cap under the advanced degree exemption for a person who obtained a U.S. master’s degree. However, after the first 20,000 applicants with U.S. Master’s degrees, those with a master’s degree are counted against the regular cap. The USCIS collects data from the Form I-129 to figure out whether an applicant is subject to the 65,000 H-1B cap.

 

How do you know if your H-1B application is subject to the Cap?

 

Applicants are exempt from the Cap if they will work at institutions of higher education nonprofit organizations, nonprofit research organizations, or governmental research organizations. Applicants who will work only in Guam or the Northern Mariana Islands are exempt from the cap until Dec. 31, 2014.

 

The Seal of the Commonwealth of the Northern M...

The Seal of the Commonwealth of the Northern Mariana Islands (Photo credit: Wikipedia)

 

How do you know when to start filing your H-1B Application?

 

The USCIS starts accepting H-1B petitions on April 1, 2013. You may apply 6 months in advance. Your employer must fill out a Form I-129, the H Classification Supplement to Form I-129, and the H-1B Data Collection and Filing Fee Exemption Supplement. Don’t forget to sign in black ink, include a signed check or money order and all required documentation and evidence requested. File everything at the correct USCIS Service Center.

 

What other documents do you need with my H-1B Petition?

 

Labor Condition Application – a certified Department of Labor Form ETA 9035.

 

Evidence of Beneficiary’s Educational Background – evidence of education credentials or, if the degree has not yet been awarded, a copy of the applicant’s final transcript and a letter from the Registrar confirming that all of the degree requirements have been met.

 

Duplicate copy of H-1B Application – a duplicate copy of your H-1B petition and any subsequent response to a Request for Evidence or Notice of Intent to Deny.

 

How much does it cost to apply for an H-1B Visa?

 

The base filing fee is $325;

 

American Competitiveness and Workforce Improvement Act fee is $750 for employers with 1-25 full time employees, and $1,500 for 26 or more;

 

Fraud Prevention and Detection fee is $500 on initial application or change of employer;

 

Public Law 111-230 fee is $2,000 for employers with 50 or more employees;

 

Premium Processing fee is $1,225.

 

Checks should be made payable to Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and must include the proper guarantee amount and signature.

 

English: Replaces :Image:H1b demographics pie ...

English: Replaces :Image:H1b demographics pie chart.jpg Source: 2005 Yearbook of Imigration Statistics Dept. of Homeland Security, Us Government (Photo credit: Wikipedia)

 

How should you organize your H-1B package?

 

Clearly label all H-1B cap cases, preferably in red ink, on the top margin of Form I-129, with the following codes: (i) Regular Cap (65,000), (ii) C/S Cap (Chile/Singapore), or (iii) U.S. Master’s (20,000).

 

Put the documents in the following order:

 

  • Form I-907 (if filing for Premium Processing Service);
  • Form G-28 (if represented by an attorney or accredited representative);
  • Form I-129, Petition for a Nonimmigrant Worker;
  • Addendums/Attachments;
  • H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions);
  • H-1B Data Collection and Filing Fee Exemption Supplement;
  • All supporting documentation to establish eligibility;

 

Provide a Table of Contents for supporting documentation

 

  • Tab items as listed in Table of Contents;
  • Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.;
  • SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent;
  • SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2;
  • Form I-566 if the beneficiary is a current A or G nonimmigrant;
  • DOL certified LCA, Form ETA 9035;
  • Employer/attorney/representative letter(s); and
  • Other supporting documentation.

 

Duplicate copy of the petition, if necessary. Clearly identify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

 

Please contact us if you have any questions.

 

Best of luck!

 

Miami International Attorneys

 

 

 

 

 

 

What is a W Visa?


What is a W Visa?

 

English: President George W. Bush delivers an ...

English: President George W. Bush delivers an Address to the Nation from the Oval Office, Monday night, May 15, 2006. (Photo credit: Wikipedia)

 

The W Visa is the World Visa. The W Visa was initiated in 2004 by George W. Bush, in an effort to provide an unlimited work visa to any applicant worldwide, so long as no U.S. citizen wanted to take the same job. Bush had announced that immigration reform was a top agenda item, but the W Visa never reached application. Recent permutations of the W Visa are extraordinarily flexible, allowing workers to switch between different U.S. employers. This type of transferability does not exist under the current U.S. immigration regime. W Visa holders would also be able to apply for permanent residence—a green card—on their own.

 

The W Visa and the Comprehensive Enforcement and Immigration Reform Act

 

Congress standing to receive Wilson  (LOC)

Congress standing to receive Wilson (LOC) (Photo credit: The Library of Congress)

 

Senators Kyl and Coryn reintroduced the idea of a W Visa, or World Visa, in the CEIRA law (the “Comprehensive Enforcement and Immigration Reform Act of 2005”). CEIRA has received negative reviews for its amnesty provisions. Critics of CEIRA believe that the bill is a scheme to import new foreign workers and provide amnesty for illegal aliens.  The bills also may provide new H-4A and H-4B visa categories. Some interpret these new visas to provide relief for aliens that have overstayed their work visa without authorization. Some interpret the new H-4A and H-4B visas to simply import aliens for three years, allow renewal for three years, and then provide a green card.

 

New reports of the W Visa

 

Reports of the W Visa have resurfaced because an immigration compromise involving the W Visa has recently cleared a major hurdle in Congress. The bill may legalize the stay of some 11 million unauthorized immigrants. The AFL-CIO (the U.S.’s largest labor union) and the U.S. Chamber of Commerce have reslated the W Visa to bring in up to 200,000 foreign workers to perform janitorial, hospitality, and construction jobs.

 

AFL–CIO

AFL–CIO (Photo credit: Wikipedia)

 

AFL-CIO President Richard Trumka stated that “we expect that this new program, which benefits not just business, but everyone, will promote long overdue reforms by raising the bar for existing programs.” The W Visa is aimed at low-skill jobs.

 

What the W Visa provides

 

Under current plans, the W Visa Program could start as early as April 2015, providing 20,000 visas at initiation, ramping up to 35,000 by year two, 55,000 by year three, and 75,000 visas by year four. Legislators hope that the W Visa’s allotment of permits would reflect demand reports from the immigration bureau.

 

Regarding the W Visa’s flexibility, the Legislators propose that entries and exits of W Visa workers will be monitored and tracked to ensure compliance with immigration regulations. Regarding applications for a green card, Legislators propose a point system to determine priority in granting permanent residency. Those applicants that have worked continuously for three years will gain priority. Other points include whether the applicant has an employer sponsor, whether the worker received promotions or pay increases during employment, whether the worker paid taxes, the worker’s English proficiency, the worker’s education, and the worker’s criminal background.

 

English: Richard Trumka and John Sweeney AFL C...

English: Richard Trumka and John Sweeney AFL CIO 2009 (Photo credit: Wikipedia)

 

We will be waiting to see how the W Visa fits into the U.S. overall immigration reform in the coming year.

 

If you have any questions or require assistance with your immigration preparation, please do not hesitate to ask.

 

Best of luck!
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

 

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

 

Miami International Attorneys, P.L.

 

MIA

Miami International Attorneys, P.L.

 

Considering Adjustment of Status from NATO Visa to Permanent Resident


Recently, MIA was contacted regarding adjusting status from a NATO nonimmigrant visa to permanent residency. Here are a few first steps that you can, and should, do on your own, before moving forward.

English: U.S. Defense Secretary Robert M. Gate...

English: U.S. Defense Secretary Robert M. Gates and other members of NATO Ministers of Defense and of Foreign Affairs meet at NATO headquarters in Brussels, Belgium, Oct. 14, 2010, to give political guidance for the November meeting of Allied Heads of State and Government at the NATO Summit in Lisbon, Portugal. (Photo credit: Wikipedia)

Check Your Visa Expiration

Step 1 for any NATO visaholder is to confirm that your visa will not expire before your adjustment can be approved. Look at the duration on your Arrival-Departure Record, Form I-94. Check the date in the lower right-hand corner of your Form I-94, Arrival-Departure Record, to determine the date your authorized stay expires. If your visa reads “D/S” (meaning, duration of stay is the same as tour of duty), note the length of your (or the officer’s) tour in the U.S., and its expected termination date. Failure to depart the U.S. will cause you to be out-of-status. When individuals retire, leave military (or civilian) service, or leave the employ of a Headquarters or Agency, they are no longer considered to be in the same (visa) status. If you possess a NATO class visa, you are required to leave the U.S. or apply for a change/adjustment of visa status within 30 days of your or your sponsor’s last day of duty. Staying beyond the period of time authorized by the Customs and Border Patrol and being in the U.S. is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S.

Extend Your Stay
If your visa is expiring shortly, you may wish to extend your stay in the United States filing a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539 Application to Extend/Change Nonimmigrant Status before your authorized stay expires. If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. We recommend that you apply to extend your stay at least 45 days before your authorized stay expires.

English: U.S. President Harry Truman signs the...

English: U.S. President Harry Truman signs the bill ratifying the North Atlantic Treaty, part of creating the North Atlantic Treaty Organization (NATO) Česky: Americký prezident Harry Truman při podpisu návrhu zákona ratifikujícího Severoatlantickou smlouvu. (Photo credit: Wikipedia)

Qualifications to Extend or Adjust

As you may know, you may apply to extend your stay if: (a) you were lawfully admitted into the United States with a nonimmigrant visa, (b) your nonimmigrant visa status remains valid, (c) you have not committed any crimes that make you ineligible for a visa, (d) you have not violated the conditions of your admission, (e) your passport is valid and will remain valid for the duration of your stay.

The common term for a change to permanent status is “adjustment of status” (“change of status” is from one nonimmigrant category to another). Because the above qualifications apply to an adjustment of status to permanent resident, please let me know if you do not meet any of these qualifications.

Check the Form I-566 Instructions

Going forward, look at the instructions from a Form I-566, which would be part of an adjustment of status application. Look at page 3, section 4, relating to adjustment of status. Also see page 5, section 3. You will also need to fill out a Form I-485, Form I-94, Form I-508, and evidentiary documents.

Look at the Other Adjustment Forms

The Form I-485 is the adjustment of status application. I attach the I-485 instructions. As you can see, there are limited grounds upon which a person may apply for permanent residency. Please look through the “Who May Apply” section on page 1 of the instructions. Do you meet any of these bases? The basic bases are through family, a job, or as a refugee/asylee.

Consider the Seriousness of Adjustment

The NATO Secretary General, the U.S. President...

The NATO Secretary General, the U.S. President, and the Prime Ministers of Latvia, Slovenia, Lithuania, Slovakia, Romania, Bulgaria, and Estonia after a ceremony welcoming them into NATO on 29 March 2004 at the Istanbul Summit (Photo credit: Wikipedia)

The I-508 is a waiver of rights. The form primarily advises you that you must waive certain diplomatic rights, privileges and immunities and pay U.S. income taxes on the salaries paid to you by your foreign governments. If you have looked over this information, are serous about adjusting your status, and believe that you have sufficient grounds to do so, then you may apply for an adjustment of status.

We always recommend thinking about an adjustment seriously, and discussing it with family and friends. If you are still serious about adjusting, find an immigration attorney to help you complete your applications correctly.

Best of luck!

Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

Miami International Attorneys

The RFE – Request for Evidence


What is the RFE and how should I react to the RFE?

During you visa application, a USCIS adjudication officer will review or visa application. If the adjudication officer feels that something is insufficient in the visa application, the officer may issue an RFE letter. This usually spells delays, but such delays can be overcome.

Common circumstances for issuance of an RFE letter are: unclear descriptions in your application, missing documents in your application, and out-of-date documents or information in your application. The officer may also wish for you to provide an affidavit swearing to the bona fide nature of a relationship at the foundation of your application, or simply evidence of eligibility, vaccination, or birth country.

  1. As one can see, making a complete and correct first application is the key to avoiding the RFE letter. However, should you receive an RFE letter and feel that you application was correct, please be aware that some RFE letters are issued by mistake. Even if you think your RFE was issued in error, you should treat the requests seriously and respond in full.
  2. Do not panic. Please also keep in mind that an RFE is better than an NID (Notice of Intent to Deny). The RFE often times just means that an officer needs clarification, while the NID generally means that you must perfect your application or likely face denial.
  3. Should you receive an RFE letter, please ensure that you respond within the time-frame indicated in the request. If you ignore the time limits, you run a high risk of having your application denied. If you receive a denial, you may have to appeal or move to reopen your denied case. Appeals cost more time and money, and may have limited success.
  4. Moreover, pay close attention to the instructions and explanation in the RFE. The USCIS may give precise information regarding how to overcome the deficiencies in your application. Before answering, review the requirements of the particular visa, and be sure that you are not only meeting such requirements, but making apparent that you meet such requirements. You should try to organize your answer for the reader, and keep in mind that the reader’s mindset is to not let you in if you do not meet all of the requirements.
  5. Finally, patience is paramount. With patience comes politeness, and most immigration lawyers agree that a polite answer to an RFE is the safest route. Further, taking the time to make a full and complete response to the RFE, rather than sending your response in pieces, should be far more effective to achieve a positive result from your application.

Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.

Best of luck!
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.
Miami International Attorneys, P.L.

Matter of Campton, (1970) – THE FIFTH BIG CASE – OPPOSING REBELO AND QUINTERO CORREA – THE B2 VISA EXCEPTION IS LIMITED BY INTENT.


In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

ARIZONA BORDERS AND CITIZEN SAFETY...

ARIZONA BORDERS AND CITIZEN SAFETY… (Photo credit: roberthuffstutter)

In this case, Matter of Campton, the Court decides that:

ARRIVAL AS A B-2 VISITOR FOR PLEASURE CAN PRECLUDE “AOS” IF VISITOR ENTERED WITH THE INTENTION TO PURSUE HIS CALLING AS A CREWMAN ABOARD A SHIP.

The Court took its holdings from Quintero-Correa and Rebelo (see previous MIA article) regarding the coincidental seaman, and held that despite those rulings, an alien can be denied adjustment of status (“AOS”) if he first entered the U.S. as a B-2 nonimmigrant visitor for pleasure, but had the “intent” to “pursue his calling as a crewman aboard a ship.”

Example for a Visa Run (Laos). Entrance and de...

Example for a Visa Run (Laos). Entrance and departure on the same day. (Photo credit: Wikipedia)

CAMPTON’S BACKGROUND TO THE U.S.

Campton, the alien that brought the case, had last entered the U.S. by automobile with a nonimmigrant visitor’s visa after a three-month visit to Canada. However, Campton had been a crewman for the prior 12 years and was coming to the U.S. for the purpose of continuing his crewman’s occupation.

MATTER OF REBELO DISTINGUISHED

The Court held that Campton was not eligible for adjustment of status, and the Court distinguished Matter of Rebelo, on the ground that in Rebelo there had been a showing that Rebelo was not entering in pursuit of his calling as a seaman.

COINCIDENTAL CREWMAN MUST REALLY BE COINCIDENTAL – NO INTENT

Macedonian visa with Greek customs stamping &q...

Macedonian visa with Greek customs stamping “Seal invalid for Greek Authorities”, with border crossing stamp from Gavgelija. (Photo credit: Wikipedia)

These cases, from Quintero-Correa to Rebelo to Campton, are not entirely consistent. The Courts have seriously questioned some of the discussion in Rebelo, in particular. However, the above cases all deal with aliens who were admitted to the U.S. in some nonimmigrant status, and one may take away the idea that if an alien enters with a B-2 visa, and truly has no intent to be involved in any capacity as a crewman, he may still later seek an Adjustment of Status.

Next Case: Matter of Loo, (1976).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

Matter of Rebelo, (1968) – THE FOURTH BIG CASE – THE B2 VISA EXCEPTION GETS A 2-PRONG TEST – WORKING AND SEEKING ADMISSION AS OCCUPATIONAL CREWMAN


Barcos Rebelo

Barcos Rebelo (Photo credit: Grumbler %-|)

In this series, MIA goes over the important cases that define the present legal atmosphere of the crewmember’s visa, the C1/D. In MIA’s last articles, we discussed the important effect of a crewmember visa designation: the inability to apply for Adjustment of Status (“AOS”) or Cancellation of Removal (“COR”).  Again, the two-prong inquiry in determining whether an alien was admitted as a crewman: the Court MUST examine both (1) the alien’s visa, as well as (2) the circumstances surrounding his entry into the U.S., to ascertain whether they entered in pursuit of their occupation as a seaman. This plainly ambiguous test leaves lots of room for factual differentiation on a case-by-case basis. Thus, to help flesh out the circumstances that have led to a ruling of eligibility or ineligibility, we have examined 19 key cases from the annals of crewmember case law.

In this case, Matter of Rebelo, the Court decides that:

ARRIVAL AS A WORKAWAY DOES NOT PRECLUDE “AOS” IF HE IS NOT (1) SERVING ABOARD A VESSEL IN A CAPACITY REQUIRED FOR ITS NORMAL OCCUPATION, OR (2) HE IS NOT SEEKING (AND THEREAFTER GAINS) ADMISSION TO THE U.S. BECAUSE OF HIS OCCUPATION IN THAT ROLE.

The Court took its holding from Quintero-Correa (see previous MIA article) regarding the coincidental seaman, and made a stiff 2-prong test. An alien who is admitted with a nonimmigrant visitor’s visa (B-2 visa) cannot be statutorily precluded from receiving adjustment of status as a crewman, because he did not seek or gain admission to the U.S. because of his occupation as a crewman. Similarly, if, like in Quintero-Correa, an alien was not serving aboard a vessel in order to maintain the vessel’s normal operation (e.g. passengers, workaways, etc.), then the alien cannot be denied AOS.

REBELO’S BACKGROUND TO THE U.S.

A crewman operates the ship's throttle in the ...

A crewman operates the ship’s throttle in the main engine room aboard the USS NEW JERSEY (BB 62). Behind him is the engine oil inspection station. The NEW JERSEY, after recently completing renovation and modernization, is undergoing sea trials prior to reactivated in January 1983. (Photo credit: Wikipedia)

Rebelo, the alien that brought the case, was a 59-year old man, and a native of Portugal. Rebelo had spent 25 years as a crewman by occupation, often as an engineer.

Rebelo arrived in the U.S. in 1965, with a B2 visa (a nonimmigrant temporary visitor for pleasure). Rebelo had obtained a B2 visa from an American Consul in Japan. Rebelo arrived as an engineer on a vessel, and was listed as a member of the crew on the vessel’s manifest. Upon presentation of the B-2, the U.S. authorized Rebelo to stay for 17 months, but Rebelo never left the U.S. thereafter.

MATTER OF QUINTERO-CORREA EXPANDED

When Rebelo applied for AOS, the U.S. denied him based on his 25-year history as a crewman. However, at trial, the Court held that Rebelo was still eligible for AOS, under the new 2-prong test. (NOTE: remember Matter of Quintero-Correa, discussed by MIA in a previous article, where the Court held that a workaway who enters on a B-2 visa could not be denied AOS as a crewman, be cause he was coincidentally, not occupationally, a seaman).

CONVINCE THE CONSULAR OFFICER YOU’RE NOT A CREWMAN

The Court found that he was not statutorily precluded from receiving adjustment of status, primarily because he had convinced a consular official that he was eligible for a visitor’s visa, and because he was properly admitted as such.

A B1/B2 visa to the United States

A B1/B2 visa to the United States (Photo credit: Wikipedia)

The crew reaffirmed that an alien who happens to be serving as a crewman at the time of his entry is barred from AOS to permanent resident only if he has been inspected and admitted or paroled into the U.S. as such. Here, Rebelo was admitted as a B-2 nonimmigrant for pleasure, and not as a crewman, and thus was not ineligible for AOS based on his crewman status.

2-PRONG TEST OF THE DOUBLY COINCIDENTAL CREWMAN

The Court set up a 2-part test to determine whether an alien is a crewmember: (1) he must be serving aboard a vessel in a capacity required for its normal operation, and (2) he must be seeking (and gain) admission to this country because of his occupation in that role.

After consideration of these two factors, the Court held that the alien’s formal visa entry, decided by the consular officer, controlled, rather than the fact that he arrived as a listed crewman engineer, and that Rebelo was eligible for AOS.

This case was the last major ruling favorable to aliens. After 1968, the rules get stricter.

Next Case: Matter of Campton, (1970).

Until next time. Stay tuned.
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

MIA

Miami International Attorneys, P.L.

Visas – Info on Each Visa Available

Andrew John Bernhard, Esq.

Welcome to MiamiVisaHelp.com’s Blog!

Welcome to MiamiVisaHelp.com’s law blog … discussing everything visa from the perspective of those that have a need, desire, or tendency to move from country to country for the purpose of work, survival, education, living, play, and everything in between. Please feel free to send Andrew John Bernhard, Esq. a message! We are always trying to enhance your experience, and help all of us movers, migrators, immigrants, ex-pats and travelers have an easier, happier, and more satisfying experience in the often confusing world of U.S. Immigration. Please feel free to visit our friends at USImmigrationMiami.wordpress.com and TheMitochondrialMigrator.wordpress.com to see more from similar minded people like yourself! Most of all…ENJOY! - Andrew John Bernhard, Esq.

Miami Visa Help by Miami International Attorneys focused on immigration law in Miami and South Florida, discussing visas, citizenship, green cards, and immigration law news