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New Orleans Immigration Law Blog

What is the National Interest Waiver?

Immigration into the United States is never easy, but there are many different pathways toward legal access into the country for work, refuge or a fresh start. One potential pathway is through the National Interest Waiver, in connection with an EB-2 employment visa. It’s a waiver that doesn’t rely specifically on employment, but instead focuses on what an applicant can contribute to society.

EB-2 applicants must show “exceptional ability” in their fields, typically meaning those with advanced degrees, scholars, doctors and more. U.S. Citizenship and Immigration Services (USCIS) describes it as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” The National Interest Waiver doesn’t require a job offer, but instead bases entry on the applicant’s ability to “greatly benefit the nation.”

There are many work visas. Do you know which one you need?

Whether you are job hunting or a New Orleans company hunting for the perfect employee to fill a position, the search can be arduous and challenging under the best of circumstances. If you are not a citizen of the United States, or your favorite candidate is not a U.S. citizen, your pursuit may become even more of a challenge. Not only will it be necessary to go through the process of obtaining a visa, but knowing which of the many work visas best fits your situation may be complex.

For instance, would you need a Temporary Trainee Visa (H-3 Visa) or an Intra-company Trainee Visa (L-1 Visa)? Are you a treaty investor needing an E-1 Visa or a treaty trader needing an E-2 Visa? Are you looking to hire a temporary worker who would need an O Visa, P Visa or R Visa? You may be considered a temporary specialty worker, which requires an H-1B Visa; or, in the alternative, you could be a temporary nonagricultural worker in need of an H-2B Visa. Choosing the wrong visa type could cause significant delays in the process.

Family visas and conditional statuses

You may have come to New Orleans to marry the love of your life. You entered the country on an immigrant visa and then became a conditional resident. Since obtaining your green card was based on your marriage, you will more than likely need to have your conditional status changed. Family visas issued for marriage have conditions on them because the United States government wants to make sure that you did not marry simply to gain entry into the country.

Now that you have been married and living in New Orleans for some time, you may be eligible to have those conditions removed. Within 90 days of your two-year anniversary, you more than likely need to submit an application to remove your conditional status and become a permanent resident. Both of you must file the petition, unless you have a waiver due to divorce, abuse or the death of your spouse.

Immigration law update: DACA discontinued

Beginning in 2012, hundreds of thousands of children born to immigrants residing in the United States without proper documentation (including perhaps many here in New Orleans) received a reprieve from potential deportation. The Deferred Action for Childhood Arrivals (DACA) program allowed those children to remain in the country to work or attend school for a period of two years. At the expiration of that time, they could reapply for another two years. It is important for those relying on this particular immigration law to know that it has been discontinued.

The current administration claims that since this program was initiated in accordance with an Executive Order instead of a law passed by Congress, that it was not supportable by law. Fortunately, the implementation of the ban does not begin until March 5, 2018. Congress has until that time to pass legislation making it legal for those who fell under DACA to remain in the country. Much speculation surrounds whether Congress will get the job done.

Immigration law changes require interviews for status updates

There are millions of people in this country holding visas under any number of categories. In the past, many of them, including many here in New Orleans, were able to update their status without the need for an interview, but not anymore. Now, immigration law requires interviews for many of these visa holders, which could cause delays, especially without the appropriate preparation.

The Department of Homeland Security conducts the interviews. At present, they are adding well over 130,000 people to the list of those who will be required to attend an interview before receiving an update to their status. For now, those involved are holding employment-based visas, but it's possible that the types of visas included could be expanded in the future. Many of these interviews are for status changes that move an applicant from one employment category to another.

What does immigration law say about adjusting your status?

After spending time here in New Orleans on one of many different visas, an individual may decide that he or she wants to stay here on a more permanent basis. In order to do so, a status change will need to be made by filing a petition to immigrate. This is done through an immigration law process and may result in the receipt of a green card for those who qualify.

In order to make a status adjustment, the individual would need to have entered the country legally and be physically present in the United States when the petition is filed. Another party may be required to file the petition for the individual depending on the circumstances. It may be possible to file the Application to Register Permanent Residence or Adjust Status at the same time as the petition is filed.

'Prosecutorial discretion' is not part of immigration law

For those New Orleans residents who are not yet United States citizens, there is more than likely a growing concern regarding the ability to remain in the country. Immigration law is being enforced in ways not seen for several years, if not decades. In fact, "prosecutorial discretion," which is not part of the current law, may be disappearing when it comes to undocumented and documented immigrants.

Prosecutorial discretion allowed prosecutors here in New Orleans (and elsewhere) to overlook the immigration status of an individual and to dismiss their cases as long as he or she generally obeyed the law and was low-risk. This gave those who were pursuing visas or marrying a U.S. citizen the time they needed to become a documented immigrant. Of course, those accused of violent crimes remained in the system and were brought to the attention of immigration officials.

Help with family visas here in New Orleans

Family is an important part of many people's lives. You may be anxious to share the beauty and vitality of New Orleans with those you love. If your current or future spouse is not yet a United States citizen, ensuring that he or she can remain in the country requires researching and obtaining the appropriate family visas.

If you are not yet married, you can petition for your future spouse to enter the country lawfully. If you are already married, you may need to obtain a different type of visa to bring your new spouse into the country. It may even be possible for your new spouse to enter the country while other petitions are being processed. Knowing what petition or petitions to file, along with what evidence to include, can be a challenge. The last thing you want is for the process to be unnecessarily delayed due to paperwork issues. 

What should you know about E-2 investor visas?

E-2 visas allow foreign individuals with significant investments within the United States to live in the US and manage their investment. Note that not all countries are covered under this visa. Your country must have an active Treaty of Commerce and Navigation or a Bilateral Investment treaty with the US. If you are from an eligible country, what should you know about the E-2 visa?

 

State Dept. moves to make 'extreme vetting' program permanent

In May, the Trump Administration announced the release of a new questionnaire that would be administered to some applicants for U.S. visas. The questionnaire was meant to provide more detailed information on any visa applicants consular officials felt warranted additional scrutiny.

The questionnaire asks for more and more detailed information than had been requested in the past. And, while it is technically voluntary, the State Department said that failing to fill it out could result in processing delays or even denial of a visa.