Santiago J. Padilla, P.A.

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March 2019 Archives

Ecuadorian Nationals Lose Treaty Investor Visa

Under Section 101((a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. §1101 et seq.), certain foreign nationals that are citizens of a country that has entered into a treaty of commerce and navigation with the United States, may obtain a nonimmigrant visa and work and live in the U.S. if such foreign national has invested a "substantial amount of capital" in a U.S. enterprise. This is what is referred to as the "E-2 Treaty Investor Visa" category. There are numerous countries that qualify for this visa because they entered into a treaty of commerce and navigation with the U.S. The U.S. Department of State publishes this list of countries. However, there are many countries that do not have a treaty with the U.S., like Venezuela, Brazil, Uruguay, Portugal, India and other countries. Last year, the U.S. Department of State issued a notification that its treaty with Ecuador was terminated by Ecuador. Therefore, nationals of Ecuador no longer qualify for the E-2 Treaty Investor Visa and Ecuadorian nationals that have made qualifying investments in the U.S. prior to May 18, 2018 will continue to be entitled to E-2 status, but only until May 18, 2028.

The Administrative Record is Extremely Important in Filing an Immigration-Related Lawsuit

It has been my practice when filing immigration petitions with the U.S. Citizenship and Immigration Services ("USCIS") to cite to specific caselaw and to develop the legal arguments in support of the client's position. However, many immigration practitioners simply file the forms and an index with a stack of documents. In my opinion, such a practice fails to prepare a case for litigation, which as processing delays and denials increase, may become necessary. Indeed, denials for some categories has gone up over 60% in the last few years and many of those denials are simply baseless. The answer is to appeal to the courts but in order to do so, the petition must contain the appropriate legal arguments and evidence. In almost all cases, judicial review will be based on the record that is before the agency. That means that the immigration lawyer should present the legal arguments that are necessary when filing a petition for a particular category. A discussion of the facts and the application of the law to the facts is becoming ever so important when filing an immigration petition.

Filing a Lawsuit to Require USCIS to Adjudicate a Petition that has been Pending for an Unreasonably Long Time

Nowadays, unreasonable or inordinate delays in immigration petition processing times are causing clients significant stress, particularly because travel may be restricted while the immigration petition or application is pending. However, there is a solution which may have been viewed as extreme in previous years, but which now is getting renewed attention. That solution is filing a lawsuit against the United States Immigration and Citizenship Services ("USCIS") in federal court under the Mandamus and Venue Act of 1962. Under this Act, the party bringing the lawsuit is demanding that the court order USCIS to act and adjudicate the petition or application. In such a case, the party bringing suit must show that he or she has a clear right to the relief requested, that the government has a clear duty to perform the act in question, and that there is no other adequate remedy available.

Filing a Lawsuit to Challenge an Immigration Denial

Visa denials have reached over 60% in certain categories, with the L-1 visa suffering the most repercussions. However, the answer may be filing a lawsuit in federal court. Many clients resist this option, but it is becoming more of a necessity. I have traditionally filed petitions and applications that have detailed legal arguments and are chocked full of relevant evidence so that if the client is willing and able, there is the availability of an appeal to the courts.

Proposed Rule May Allow Millions to Qualify for Overtime Compensation

Last week, the U.S. Department of Labor ("DOL") issued a Notice of Proposed Rulemaking that would allow millions of additional workers to receive overtime compensation. In particular, under the current law, administrative employees that earn at least $455 per week are not entitled to overtime compensation. Section 12(a)(1) of the Fair Labor Standards Act of 1938 provides an exemption from both minimum wage and overtime pay for such employees.

New USCIS Policy Memorandum Changes the Environment Drastically and Could Result in Springing Immigration Violations

On August 9, 2018, the United States Department of Homeland Security issued a Policy Memorandum to provide guidance to United States Citizenship and Immigration (USCIS) adjudicating officers in the calculation of what constitutes "unlawful presence" for persons with student visas. This is significant because if an alien has more than six months of "unlawful presence," that alien is subject to a bar on entry to the U.S. for a period of three (3) years and if the alien has more than one year of "unlawful presence," then the alien is subject to a bar on entry for ten (10) years. That means that an alien will not be permitted to enter the U.S. if he or she has such unlawful presence. However, the most curious thing about this Policy Memorandum is that the alien may not know of the bar to entry until he or she actually seeks to reenter the U.S.