Patrick to focus on change for immigrants: Says he wants to integrate foreign-born into state

The Boston Globe reports that, in stark contrast to the expressed policies of elected officials nationwide, recently reelected Massachusetts governor Deval Patrick has vowed to push forward with his agenda to integrate immigrants, both legal and illegal, into the state. Two of the more controversial positions he restated his support for are offering in-state tuition and drivers licenses to illegal immigrants.

Patrick’s progressive stance on immigration is not new. In one of his first official acts as governor in 2007 he overturned a controversial policy enacted by his predecessor and 2012 presidential hopeful, Mitt Romney, to have the State Police help enforce immigration law. Here Patrick’s reach is far more limited as in-state tuition and driver’s licenses for illegal immigrants are barred under federal law. The governor acknowledged that these changes cannot come about “without some changes in federal law in both of those cases,’’ and that “working with the federal government is the only way we’re going to be able to move those forward. But I still think they’re right.’’

An undocumented immigrant residing in New York, who has filed an I-130 Petition and an I-485 Adjustment of Status Application with their spouse, will be scheduled for an adjustment of status interview at their local USCIS office. At this initial interview, the couple will be asked to present certain documents and answer questions proving the validity of their marriage. If the USCIS officer is not satisfied that the marriage is legitimate, the office may schedule the couple for a second interview, known as a Stokes interview.

During the Stokes interview the couple is separated. They are questioned one-on-one by a USCIS officer, who will ask detailed questions about their relationship, their families, employment, travel, and many other matters. The answers provided by the couple must match nearly perfectly or there is a strong possibility that the USCIS officer will deny the I-130 Petition and then place the undocumented spouse in removal proceedings (i.e. deportation hearings) in Immigration Court. If the USCIS officer determines that the true intent of the marriage is to fraudulently obtain a greencard, the undocumented spouse will be barred from obtaining a greencard permanently.

Preparation is the key to successfully navigating a Stokes interview. Failure may lead to the most serious consequences, including arrest and/or deportation. We have attended many of these interviews with our clients and counseled them on what to expect at a Stokes interview.

If you have a Stokes interview scheduled or have been issued a denial following a Stokes interview, please call or email us to schedule a consultation.

For years universities and venture capital firms have hosted entrepreneur-in-residence programs, in which experienced entrepreneurs and founders mentor students or evaluate potential investments. In November, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced an “Entrepreneurs in Residence” program for the United States.  The initiative seeks to bring business leaders and academics into the agency to meet regularly with officials to improve the visa process for immigrant entrepreneurs. The goal is “capturing the full power of the laws that currently exist to attract talent to spur entrepreneurial growth, to maximize innovation — all for the benefit of our economy and the American worker,” said Director Mayorkas. He stated that “[t]his initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth,” and that the “introduction of expert views from the private and public sector will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

Under the program the agency has sought feedback and policy proposals from a group of venture vapitalists, academics and thought leaders.  They found that the process of setting up a legal business and establishing residency in the U.S. was needlessly complicated for foreign entrepreneurs of small startups, leading to the impression that the U.S. did not truly welcome talent from outside its own borders. They suggested, among other things, new training for the government officials who judge foreign entrepreneur’s visa applications along with modernizing field manuals to better help adjudicators in evaluating business plans and startups.

The initiative builds upon USCIS’s August announcement of efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. Since August, USCIS has been:

• Conducting a review of the EB-5 process
• Working with business analysts to enhance the EB-5 adjudication process
• Implementing direct access for EB-5 Regional Center applicants to reach adjudicators quickly; and
• Launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intra-company transferees.

While noteworthy indicators that the Obama administration is taking the potential of immigrant entrepreneurs and startups seriously, Congress’ failure to pass the Startup Visa Act ensures that the U.S. will continue to bleed talent. As the economic crisis persists traditional work visas are harder to obtain for foreign students graduating from U.S. universities. Without a visa option to stay in the U.S. upon graduation they are leaving the U.S. in greater numbers and applying their training and skills to starting and building businesses at home, rather than in the U.S. Until Congress enacts modern legislation which reflects the importance of immigrant entrepreneurs and immigrant startup founders to the economy the Administration’s best intentioned efforts will fail.

The Obama administration has announced that it will suspend deportation proceedings against many illegal immigrants who pose no threat to national security or public safety. Under the policy, immigration authorities will use powers of prosecutorial discretion in existing law to suspend the deportations of most immigrants who, although they have committed immigration violations, have not been convicted of crimes.

Officials stated that they will look to halt deportations of longtime residents who came to the United States illegally as children, or are close family of military service members, or are parents or spouses of American citizens.

Officials from the Department of Homeland Security said their goal is to quickly identify noncriminals of this profile which currently overburdened  immigration court dockets and to close their cases. By clearing noncriminals high priority removals such as gang members, drug traffickers or foreigners who repeatedly return after being deported will be accelerated. Immigration courts can now require as long as 18 months between hearings.

The Obama administrations action will help many intended beneficiaries of the DREAM Act, a legislation that has been stalled in Congress for a decade. Democratic Senator Richard J. Durbin of Illinois, sponsored the legislation and has long argued that “these young people should not be punished for their parents’ mistakes.”

The announcement also had an immediate impact on a same-sex marriage case in Denver, where an immigration judge postponed the deportation of Sujey Pando, a lesbian from Mexico legally married in Iowa to an American from Colorado, Violeta Pando.

Federal law still does not recognize same-sex marriages, but administration officials said they would consider same-sex spouses as “family” in their review of deportation cases.

While it is unfortunate that the intransigent and dysfunctional Congress cannot agree to a modern and just immigration reform it in encouraging that the administration recognizes the moral and economic basis for progress in immigration policy.

Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Service (USCIS) Director Alejandro Mayorkas announced new “clarifications” that seek to highlight visa options for entrepreneurs and startup companies who own some or all of the petitioning company, or have no job offer or sponsoring employer at all.

First, they noted a path to applying for an H-1B nonimmigrant visa for entrepreneurs who own all or part of their company. The Agency updated its guidance on establishing “Employer-Employee Relationship” in H-1B petitions to account for a company petitioner that is owned by the shareholder beneficiary but controlled by its Board of Directors.  The USCIS has set forth a scenario whereby a founder petitioner could sponsor his or her own H-1B application. Specifically, the agency states:

USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition.  However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

While this is a welcome development, the USCIS’ emphasis on divorcing control from ownership is a major obstacle for actual entrepreneurs, who by definition want to ‘be their own boss’. It is a small step in the right direction, but real legislative change is needed to account for the majority of immigrant entrepreneurs and immigrant founded start-ups in which ownership and control are inseparable.

In addition to addressing H-1Bs for start-ups, USCIS has issued new guidance regarding entrepreneurs seeking an EB-2 immigrant visa. The EB-2 immigrant visa is for members of the professions holding advanced degrees or their equivalent and/or individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. To obtain an EB-2 immigrant visa, the applicant (i) MUST have a job offer from an U.S. employer and (ii) an approved labor certification from the Department of Labor. Previously, it was necessary for an EB-2 beneficiary to find a U.S.  employer to act as the petitioner.

The new guidance states that entrepreneurs, if they qualify, can obtain a National Interest Waiver which exempts the entrepreneur petitioner from (i) the normal requirement of a job offer from a U.S. employer and (ii) from having to obtain a labor certification from the U.S. Department of Labor. “National Interest” is not defined but the USCIS offers three criteria that must be met to qualify. The criteria are that:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

While not a change in the law, the administration’s explicit  emphasis towards  helping  foreign entrepreneurs stay in the United States is long overdue and an exciting development for immigrant entrepreneurs and the start-up community overall. On the other hand, past policies discriminating against small businesses have not been disavowed, so the road to a nonimmigrant visa or legal permanent resident status for entrepreneurs is still fraught with obstacles.

The Startup Visa Act, which offers entrepreneurs multiple options for achieving a greencard is still the best step forward and should be at the top of Congress’ agenda for job creation and economic growth. For the moment these ‘clarifications’ are only a temporary solution.

JUNE 28, 2013 UPDATE: The Supreme Court’s momentous decision in United States v. Windsor on June 26, 2013 has declared DOMA unconstitutional. Due to this progressive and humane decision, the Secretary of Homeland Security Janet Napolitano made this statement:

“I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits. I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”

In addition, at the American Immigration Lawyer’s Association 2013 annual conference held in San Francisco, CA this week, USCIS Director Alejandro Mayorkas indicated that since February 2011, when the Administration opined on the unconstitutionality of DOMA, USCIS has kept a list of all I-130 petitions filed by same-sex binational couples that were denied, and is now prepared to act accordingly.

THUS, SAME-SEX BI-NATIONAL COUPLES SHOULD NOW BE ABLE TO FILE I-130 PETITIONS AND GET AN APPROVAL FROM USCIS. PLEASE CONTACT US IF YOU NEED MORE INFORMATION OR WOULD LIKE US TO ASSIST YOU AND YOUR SPOUSE TO FILE FOR LEGAL PERMANENT RESIDENCE BEFORE USCIS.

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On Friday, June 24, 2011, New York Governor Andrew Cuomo signed into law a bill permitting same-sex couples to be wed.  New York joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington DC in this progressive grant in providing equal rights to all. As same-sex couples line up beginning July 24, 2011 to be married, what does this mean for immigration policy? Can an individual adjust their status to become a legal permanent resident after their same-sex spouse files an I-130 Petitions for Alien Relatives before U.S. Citizenship and Immigration Services?

Unfortunately, thus far, USCIS has consistently denied I-130 petitions filed by bi-national same-sex couples, legally married in the states with competent jurisdiction. The obstacle preventing USCIS in approving these I-130 Petitions is the Defense of Marriage Act, which was signed into law by President Clinton. DOMA has been under fierce attack by courts around the United States. Last year, a federal judge in Massachusetts declared the law unconstitutional as it applied to same-sex couples for issues like inheritance taxes and federal health and pension benefits. President Obama has expressed his opposition to DOMA. In February, Attorney General Holder stated that Section 3 of DOMA, which defines marriage for federal purposes as only between a man and a woman, should be subject to a more heightened standard of scrutiny, and is therefore unconstitutional. Specifically, AG Holder stated that, “[w]hile both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.”

What can President Obama do? The President must wait for the Supreme Court to make a constitutional finding on DOMA, but it is possible for President Obama to take intermediary actions. Specifically, a directive should be made to USCIS to accept same-sex filed I-130 Petitions in the context of adjustment of status to allow for employment authorization benefits and the grant of advance parole. Final approval of these petitions can be held in abeyance to await final judicial resolution.

Hopefully, the day when same-sex bi-national couples will be able to file I-130 petitions and get an approval will come soon enough.

New York State has finally adopted a no-fault divorce cause of action. Known as Irreconcilable Differences in many states, New York’s Domestic Relations Law § 107 has added as “Irretrievable Breakdown” to the list of grounds for divorce. The new provision, DRL 107(7). New York State has finally adopted a no-fault divorce cause of action. Known as Irreconcilable Differences in many states, New York’s Domestic Relations Law § 107 has added as “Irretrievable Breakdown” to the list of grounds for divorce. The new provision, DRL 107(7). New York State has finally adopted a no-fault divorce cause of action. Known as Irreconcilable Differences in many states, New York’s Domestic Relations Law § 107 has added as “Irretrievable Breakdown” to the list of grounds for divorce. The new provision, DRL 107(7).

New York State has finally adopted a no-fault divorce cause of action. Known as Irreconcilable Differences in many states, New York’s Domestic Relations Law § 107 has added as “Irretrievable Breakdown” to the list of grounds for divorce. The new provision, DRL 107(7). New York State has finally adopted a no-fault divorce cause of action. Known as Irreconcilable Differences in many states, New York’s Domestic Relations Law § 107 has added as “Irretrievable Breakdown” to the list of grounds for divorce. The new provision, DRL 107(7). New York State has finally adopted a no-fault divorce cause of action. Known as Irreconcilable Differences in many states, New York’s Domestic Relations Law § 107 has added as “Irretrievable Breakdown” to the list of grounds for divorce. The new provision, DRL 107(7).