August 2010

I am not shocked very easily when it comes to the immigration debate, but that was certainly the case last week when I learned that Senator Lindsey Graham (R-SC) told a reporter that he was seriously considering introducing a bill to substantially alter the 14th Amendment to the Constitution as it pertains to birthright citizenship. Extremists on the far right have argued for years that time has come to end automatic citizenship for all children born in the United States. That this has been the cornerstone of civil rights protections in the US for nearly 150 years and most mainstream politicians would not even mention scrapping birthright citizenship – that is until this week.

Graham’s comment was especially surprising given that he has been one of the few voices in the Republican Party supporting comprehensive immigration reform. Graham was quickly joined by a number of other Republicans which effectively signified the end of any hope that the GOP will participate in negotiating on an immigration bill. It also means that the GOP has effectively written off the Hispanic vote for decades in the hope of appealing to the Tea Party wing of their party. Of course, this is a group that was already voting Republican.

All that this position may do is energize some of these voters to turn out in November. That may even help the GOP regain control of the House of Republicans. But it spells doom in the long run. A party that appeals primarily to white southerners and westerners can perhaps do well when the economy is mired in recession and the election is a referendum on the Democrats’ performance. But when the economy recovers, they will be in serious trouble.

I’ve written a piece in this issue on why we should be worried about repealing the 14th Amendment. The article was originally run on the American Immigration Lawyers Association web site on their leadership blog (I’m on the board of governors). Hopefully, the GOP will get some common sense and start moving again back to the center. Right now, it seems like the ship is rudderless.

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There have been other important developments as well since our last issue. One was the leaking of a USCIS memorandum outlining how the Administration can accomplishment many goals of comprehensive immigration reform without depending on legislation. Republican lawmakers were naturally furious given how effectively they’ve blocked reform in Congress. The White House was basically silent – as was probably wise – and is keeping it’s plans to itself.

The other news was the passage of a $600 million border enforcement bill by both houses of Congress. In a shameless attempt to show the measure is budget neutral, Democratic legislators claim that a large increase in H-1B fees to be imposed on the largest Indian IT staffing companies will cover the costs. First, why H-1B applicants should have to underwrite sending money to the Mexican border is beyond me. Second, even if this is justified, the dollars that will be raised are not going to be nearly enough to cover the bill. Politics at its worst.

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This week I’m off to speak at ImmigrationWorksUSA’s national conference in Seattle where I’ll be joining my friend Lou Moffa on a panel discussing developments in state immigration lawmaking. We’ll talk about the Arizona law as well as immigration laws popping up in other states.

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Readers are reminded that they are welcome to contact my law office if they would like to schedule a telephone or in person consultation with me or one of my colleagues. If you are interested, please call my office at 901-682-6455.

Regards,

Greg Siskind

The Immigration and Nationality Act provides treaty trader/investor nonimmigrant status for a national of any of the countries with which an appropriate treaty of commerce and navigation exists.

An individual who wishes to go to the US to carry on substantial trade, principally between the US and his/her own country, may apply for a treaty trader visa (E1). Someone who is going to the United States to develop and direct the operations of an enterprise in which he/she has invested, or is actively in the process of investing, a substantial amount of capital is welcome to apply for a treaty investor visa (E2). The category is popular because unlike the L-1 category, it is not necessary to
maintain a business outside the US and also because unlike L-1 status, E-1 and E-2 visas can be renewed every five years without limits.

What documents are required to apply?

• E-1 Treaty Traders must submit a comprehensive letter from the principal alien’s company or employer identifying the applicant and describing in detail the nature and function of the business and the applicant’s position. The letter must be on the current business/employer’s letterhead, with an original signature from an authorized company representative, and must be addressed to the Visa Office, Department of State. The letter should demonstrate the applicant’s entitlement to E-1 status based on the continued trade between the US and the country of the applicant’s nationality. The letter must contain a statement of unequivocal intent that the applicant will depart the US when E-1 status ends. If the visa applicant is the sole company employee in the US , submit the latest copy of the company’s FICA and IRS forms with the applicant’s letter of explanation. Please include the company’s fax number.

• E-2 Treaty Investors must submit a copy of the company’s most recent financial statement. E-2 Treaty Investors must also submit a comprehensive letter from the principal alien’s company or employer identifying the applicant and describing in detail the nature and function of the investment and the extent of the principal alien’s participation in the investment. The letter must be on the current company/employer’s letterhead, with an original signature from an authorized company representative, and must be addressed to the Visa Office, Department of State. The letter should contain a statement of unequivocal intent that the applicant will depart the US when E-2 status ends.

Both E-1 and E-2 applicants must submit

• Online Forms DS-156 and DS-156E.

• One Supplemental Nonimmigrant Visa Application, Form DS-157, for all male applicants between the ages of 16 and 45, regardless of nationality, in addition to the DS-156. The DS-157 must be typed or printed. All questions on the DS-157 must be answered. Applicants whose native language is not written in the English alphabet should print their names in their native language in item 3 of the DS-157. An online version of this form is available at http://travel.state.gov/DS-0157.pdf.

• One two inch by two inch photograph

• A passport valid for at least six months beyond the visa application date (including Visa Office processing time). If more than one person is included in the passport, each person applying for a visa must submit a visa application. You must present the passport bearing your most recent E visa. Each applicant receives an individual visa, and each Machine Readable Visa (MRV) covers a full passport page. Therefore, passports must contain a blank, unmarked visa page for each US visa to be placed in the passport. Remove extraneous pieces of paper (slips of paper with phone numbers, old airline

boarding passes, etc.) from the passport. You may submit a passport in a protective cover.

• The original or a certified copy of Form I-94, Arrival-Departure Record annotated by the Department of Homeland Security (formerly INS) inspector from your most recent admission to the US .

• If the spouse and/or dependent children are applying for visas separately from the principal alien, submit certified copies of the principal alien’s valid visa and valid I-94 (front and back) in addition to the other listed requirements.

• Visa fee of $100.

Note that both E-1 and E-2 applicants can submit a variety of other documents demonstrating that an investment or trade between the US and treaty country is substantial. Your immigration lawyer should be able to provide you with a document checklist, but expect to have to produce documents that concern

– the incorporation of the business in the US – the ownership of the company
– the capitalization of the business
– the business plan

– information on business activities such as marketing documentation, sales contracts, customer lists, etc.

– lease or property ownership documentation

– financial statements and tax returns for the US business

– if the company has business abroad, information on the business and finances of the foreign operation

– information on the proposed position in the US and background information on the proposed executive, owner, manager or essential employee

Which countries have E-1 Treaty Trader Status?

The following countries have E-1 Treaty Trader Status: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, Chile, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Jordan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, South Korea, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom and Yugoslavia.

Which countries have E-2 Treaty Investor Status?
The following countries have E-2 Treaty Investor Status: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia & Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, South Korea, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom and Yugoslavia.

Can spouses or E-1 and E-2 visa holders work?

Yes. A spouse of an E-1 or E-2 visa holder can work with an employment authorization document. Spouses must file an I-765 application with a regional service center along with proof of the spouse’s visa status.

Can one change to E-1 or E-2 status from within the US ?

Yes, the USCIS has the authority to approve a change to E-1 or E-2 status from another non-immigrant visa. However, once an applicant leaves the US , the applicant must apply for E Visa status at a consulate. Because the consulate can reject the application, one risks being put in a position where a substantial investment is made in a business in the US and then the applicant is unable to return to the US to run the business. Consequently, applicants are urged to exercise caution when first attempting to apply for E status in the US .

International Update

The Department of State Liaison Committee reminds members that the United States has a treaty with Denmark authorizing E-2 investor visas, in addition to E-1 treaty trader visas. Confusion was caused as the DOS Reciprocity Schedule stated there was “no treaty” in the E-2 category for Denmark, although the exhibit in the Foreign Affairs Manual (9 FAM 41.51 Exhibit I) indicates both E-1 and E-2 visas are available. The State Department has confirmed that it will update the DOS Reciprocity Schedule to reflect the E-2 treaty that went into force on December 10, 2008.

If you have a question on immigration matters, write [email protected]. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) Question:

I came to the U.S. on a visa, but stayed past the time given me on the I-94. My father is supposed to be sworn in as a U.S. citizen in December. I turn 21 in January. Will I be able to apply for a green card in the U.S. if my father files the paperwork for me before I turn 21?

Answer:

As a general rule, you must be in status in order to be eligible to receive a green card in the U.S. One of the exceptions to this rule is for an Immediate Relative who was inspected and legally admitted or paroled when they last entered the U.S. An Immediate Relative is the spouse, or unmarried child who is under 21, of a U.S. citizen.

Under the old rules, an Immediate Relative child would lose their status as an Immediate Relative if they turned 21 before becoming a permanent resident. However, under the Child Status Protection Act, if a U.S. citizen files an immigrant petition for their unmarried child before their 21st birthday, the child will remain an Immediate Relative, as long as they stay single, even if USCIS does not grant them status as a permanent resident until after their 21st birthday. The same holds true of a permanent resident who files for their child and then naturalizes, becoming a U.S. citizen, before the child’s 21st birthday.

So your father does not have to wait until he becomes a U.S. citizen before filing the immigrant petition. As long as you remain single; the immigrant petition is filed before you turn 21; and your father is sworn in as a U.S. citizen before you turn 21, then you should be eligible to apply for a green card, as an immediate relative, without leaving the U.S.

2) Question:

My father is a U.S. citizen. He filed an immigrant petition for my sister in 2002. Since then, my sister has come to the U.S. on an H-1B visa. Her company filed an immigrant petition for her and she filed a green card based on this petition. She is waiting for the green card application to be approved. Recently my father received a letter from the National Visa Center telling him that he can start processing for my sister’s visa application. What do we do?

Answer:

Your father can write to the National Visa Center and tell them that your sister will be applying for a green card (Adjustment of Status) in the U.S. They will transfer her case back to USCIS.

Whether your sister will need to do anything further depends on whether a visa is available for the immigrant petition that was filed by her company. If the priority date for the company’s petition is current under the DOS Visa Bulletin, then she can just wait for USCIS to grant her permanent residence.
If a visa is not currently available for that petition, and the priority date for her father’s petition is now current under the Visa Bulletin, then she now has the option to file a new application for Adjustment of Status based upon her father’s immigrant petition. But it is a good idea for her to consult with an immigration law attorney to make sure that her father’s petition is still valid and that there is no reason to stay with the employment-based application for adjustment of status before going forward with this option.

The Associated Press reports that the number of deaths among immigrants crossing the Arizona border from Mexico has increased at an alarming rate in July. The bodies of 40 illegally present immigrants were brought to the office of Dr. Bruce Parks, the Pima county Medical Examiner. Dr. Parks says his office is storing roughly 250 bodies and has been forced to use a refrigerated truck to store some of them.

Authorities attribute the high number of deaths to above-average temperatures and tighter border security that pushes immigrants to more remote and dangerous terrain. These deaths occur despite public service announcements warning of the dangers of desert heat, humanitarian groups that maintain aid stations for immigrants in distress, and 20 Border Patrol rescue beacons that distressed immigrants can activate in remote areas.

http://www.trivalleycentral.com/articles/2010/07/21/arizon a_city_independent/news/doc4c45d83c3f06d566586474.txt ******

Mexico sends human rights inspectors to border

The Washington Post reports that Mexico’s National Human Rights commission announced that it will send inspectors to U.S. border crossings to monitor deportations and ensure migrants are treated properly. The commission issued a statement claiming that the implementation of Arizona Law SB1017 threatened ‘migrants’ full exercise of their human rights.

Interior Secretary Francisco Blake of Mexico met with U.S. ambassador Carlos Pascual on July 26th to express his support for the Obama administration’s challenge to the law. In addition, he emphasized that Mexico wants a proper investigation of the deaths of two Mexican citizens in incidents involving U.S Border Patrol officers in May and June.

http://www.washingtonpost.com/wp- dyn/content/article/2010/07/25/AR2010072501790.html ******

U.S. Consulate in Ciudad Juarez closes for security

The Associated Press reports that the United States shutdown its consulate in the Mexican border city of Ciudad Juarez for a security review. The decision comes just

months after drug gangs killed three people tied to the consulate. The U.S. Embassy announced that the consulate will ‘remain closed until the security review is completed.’

The consulate at Ciudad Juarez is the only place where Mexicans applying for U.S. residency can go and the embassy said it would have to reschedule pending appointments for visa applications. They warned that medical clinics where applicants are required to receive exams ‘may also close on short notice.’

Ciudad Juarez has been a battleground between warring drug cartels and more than 4,000 people have been killed their since 2009. In May, U.S. consulate employee Lesley Enriquez, her husband, and Jorge Alberto Salcido, the husband of a Mexican employee of the consulate, were killed by gunmen.

http://www.washingtonpost.com/wp- dyn/content/article/2010/07/29/AR2010072906525_pf.html ******

US to reopen consulate in Mexican border city

The Associated Press reports that the U.S. consulate in the Mexican border city of Ciudad Juarez will reopen after being closed for two days due to an unidentified security threat. A U.S. Embassy spokesman refused comment on the findings of the security review or what specifically prompted the sudden shutdown of the consulate.

The consulate in Ciudad Juarez is the only location in Mexico that processes immigrant visa. In 2009, the consulate processed 124,145 immigrant visa applications and about 120,000 travel visas. The U.S. embassy said it would reschedule any missed appointments for visa applications through its call center.

http://www.washingtonpost.com/wp- dyn/content/article/2010/08/02/AR2010080204591.html ******

Reuters reports that U.S. District Judge Susan Bolton blocked several key parts of Arizona’s controversial immigration shortly before it was to take effect. The provisions blocked included requiring a police officer to determine the immigration status of a detained or arrested individual and requiring immigrants to carry their documentation with them at all times. The Justice Department argued that Arizona’s law infringed on federal authority over immigration policy and Bolton agreed, finding that the ‘United States is likely to suffer irreparable harm’ if her court did not overturn certain sections of the law.

Arizona Governor Jan Brewer said she ‘will soon file an expedited appeal’ to reinstate the provisions, which could ultimately reach the Supreme Court. However, Peter

Spiro, a law professor at Temple University and former attorney in the State Department, said that the court’s decision would take ‘the wind out of the sails of anti-immigration efforts on the state level’ and doesn’t expect the blocked provision to ever go into effect.

http://www.reuters.com/assets/print?aid=USTRE66R45C20100728

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The Washington Times reports that the city council of Fremont, Nebraska has suspended its voter-approved ban on hiring or renting property to illegally present immigrants by a unanimous vote. The city council hopes that delaying the ordinance will save the city money as it fights lawsuits brought by the American Civil Liberties Union and the Mexican American Legal Defense & Education Fund. They have hired Kansas-based attorney Kris Kobach, who drafted the ordinance and also helped write Arizona’s new immigration law.

The Nebraska ordinance would require employers to use a federal online system to check a person’s immigration status and for prospective property renters to apply for a $5 permit at City Hall. Those who said they were not citizens would have their legal status checked and would be forced to leave the property if they did not provide proper documentation.

http://www.washingtontimes.com/news/2010/jul/28/nebraska-city-suspends- immigration-law-goes-court/print/
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