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Archives: October 2016

A US Permanent Resident Can Reside Outside the United States and Still Qualify for Naturalization

Office building on a bright sunny day.

Swaray Law Office building on a bright sunny day.

Residency and physical presence in the United States are among the centerpiece requirements for naturalization in the country. The applicant must reside in the country for the five year period immediately before he files his naturalization application.  If married to a United States citizen, he must reside continuously in the United States for the three year period immediately before the date of his application.  He must also be physically present in the country for at least 30 months or for two and half years of the five year period immediately before his application.

But if  a permanent resident must live outside the United States because of a job with the US Government, private sector or religious organization, and wants to apply for naturalization, he can avoid the residence and physical presence requirements by applying with the Citizenship and Immigration Services (CIS) for preservation of his residency for naturalization. If the CIS approves his application, he can live outside the country as a permanent resident and the period will not be counted against the residency and physical presence requirements of his naturalization application.

The application is filed on a Form N-470, also known as an Application to Preserve Residence for Naturalization purposes.  To qualify for the relief, the applicant must first have been physically present and resident in the United States continuously, without absences, for at least one year upon admission as a lawful permanent resident.  Religious workers are exempt from this requirement.  Second, the applicant must be employed with the United States Government, a private sector or a United States religious organization.  One is deemed to be physically present in the United States when the person is within the territorial borders of the United States.  One is deemed to be resident in the United States when the person has a principal residence in any part of the country.  Examples of principal residences include the ownership by the person of a house, apartment or other of abode type which the person owns or possesses with no immediate intent to abandon while outside the United States.  Examples of employment with the United States Government are work with the United States Government under a contract or with an American research institution, firm, corporation or the like.  Employment with a public international organization of which the United States is a member by treaty or statute is another example of a job with the United States Government.  But the applicant should not have been employed with the public international organization before becoming a lawful permanent president.

Spouses of United States citizens that are eligible for naturalization are exempt from establishing the naturalization residency and physical presence requirements, and therefore, not required to file for preservation of continuous residence.  Note that the grant of an application to preserve residence for citizenship does not relieve a permanent resident from obtaining a re-entry permit in advance of trips outside the United States for one year or more.  The grant does not also exempt the permanent resident from United States admissibility requirements of his permanent residency status.

This blog is by an attorney at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is located in the northern suburbs of the Twin Cities.  It is north of Minneapolis, Minnesota, and contiguous to Brooklyn Park, Crystal, Robbinsdale, Maple Grove and Blaine.  To visit Swaray Law Office, please go to www.swaraylawoffice.com, or call 763-549-0670 or email us at swarayassociates@cs.com.

EB-5 Immigrant Visa — Definition of Material Concepts

Amadu SwarayCongress created the EB-5 immigrant visa in 1990 with the core purpose of attracting new foreign investment capital to the country, and to create new jobs for United States workers.  Since then, the visa program has yielded phenomenal results.  By 2008, the program had pumped over $15.4 billion foreign direct investment into the US economy.  Between 2010 and 2013, it had injected $9.62 billion, and 29,300 jobs and $12.08 billion in tax revenue.

This blog will define material concepts associated with the EB- 5 program.  The goal is to simplify the concepts so as to help the public to more fully understand the program.

 What does the EB-5 Visa Program mean?  It is a program Congress established in 1990 in which a foreign investor who intends to get permanent residency in the United States invests capital in a new commercial enterprise to create jobs for United States employees.

What is Investment of Capital?  Investment of capital is commitment of capital by the foreign investor into a new commercial enterprise to create jobs.

What is Capital?  Capital, among others, includes cash, equipment, inventory, other intangible property, cash equivalents, and all indebtedness secured by assets owned by the foreign investor.  The foreign investor has to be personally and primarily liable for the indebtedness and the assets of the new commercial enterprise, and the investment capital should not be used  to secure any of his indebtedness.  The capital is valued in US dollars at the United States fair market value.  Assets acquired directly or indirectly by unlawful means, such as criminal activity, is not capital for EB-5 purposes.

What is Investment?  The foreign investor’s contribution of capital into the risk stream of the market place for the purpose of generating a return.  It must go beyond a mere interest to invest.  For example, a promise or guarantee to the immigrant investor for a portion of his investment capital is not deemed an investment because the portion was risk protected at the time of investment.  The invested capital has to be at risk, i.e, it must be exposed to a loss possibility in order to be considered an investment.

What is the Amount of Capital that Must be Invested?  The immigrant investor must invest $1 million in a new commercial enterprise that creates no less than 10 jobs; or invest $500,000 in a Targeted Employment Area (TEA).  In the last two years, there has been political efforts to increase the TEA $500,000 investment amount, but the efforts have not yielded any result.

What is TEA?  A rural area or an area with at least 150% of the average national unemployment rate.  The TEA is designated by the controlling state government in conjunction with the investor and the Citizenship and Immigration Services (CIS).

What is a New Commercial Enterprise?  Any for-profit activity formed for the ongoing conduct of lawful business established after 1990.  Some examples are sole proprietorships, partnerships, holding companies, joint ventures, corporations, business trusts, or other privately or publicly owned entities.  New commercial enterprises that existed before 1990 are considered, but must meet the new commercial enterprise definition.  They could meet the definition if they are simultaneously or subsequently restructured into an EB- 5 new commercial business entity.

Is the Foreign Investor Needed to be Engaged in  the Management of the New Commercial Enterprise?  Yes, the investor needs to be engaged in the daily management of the new commercial enterprise, or in the formulation of its policies.

What are EB-5 Regional Centers?  These are centers established within the EB-5 program three years after the program came into effect.  They are referred to as the “Immigrant Investor Pilot Program”.  They are private or public economic units with one or more new commercial enterprises in a geographic area charged with managing, directing and controlling projects and developments of new commercial enterprises.  All the new commercial enterprises in a Regional Center must each meet EB-5 capital investment and job creation goals.

What is Job Creation?  EB-5 jobs must be full time of at least 35 hours per week.  The immigrant investor, his spouse, children and relatives are not counted as “employees” even if they work under the program.  If a particular commercial enterprise is troubled, it could still be deemed to have met the EB-5 job creation requirement if it had met the program’s required number of jobs goal before it adopted the EB-5 program.  But it must also be a business that has been in existence for at least two years with a net accounting loss in the twelve or twenty-four months prior to the foreign investors priority date indicated on his initial investor immigrant visa application.

This blog is written by an immigration attorney at Swaray Law Office, LTD situated in Brooklyn Center, Minnesota.  Brooklyn Center is located in the north of Minneapolis in Minnesota.  The city is close to Brooklyn Park, Robbinsdale, Crystal,and Maple Grove.  To contact Swaray Law Office, call 763-549-0670 or visit us at this website at www.swaraylawoffice.com or at swarayassociates@cs.com.

Deferred Enforcement of Departure Extended for Liberians in the United States

Deferred Enforced Departure Extended for Liberians in U.S.
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USCIS Automatically Extends Validity of Employment Authorization Documents

WASHINGTON—President Obama has announced an extension of Deferred Enforced Departure (DED) for certain Liberian nationals through March 31, 2018. U.S. Citizenship and Immigration Services (USCIS) will automatically extend employment authorization documents (EADs) for Liberian nationals covered by this extension of DED. Current DED-based EADs that have an expiration date of Sept. 30, 2016, will now be valid through March 31, 2017. The six-month automatic extension of existing EADs will allow eligible Liberian nationals to continue working while they file their applications for new EADs. The extension also gives USCIS time to process and issue new EADs.

Certain individuals are not eligible for DED, including:

  • Liberians who did not have Temporary Protected Status (TPS) on Sept. 30, 2007, and are therefore not covered under current DED;
  • Certain criminals;
  • People subject to the mandatory bars to TPS; and
  • Those whose removal is in the interest of the United States.

USCIS will publish a notice in the Federal Register with information regarding the extension of EADs for eligible Liberian nationals and instructions on how to obtain employment authorization for the remainder of the DED extension.

For additional information about DED for Liberian nationals, please visit the Deferred Enforced Departure webpage. Liberian nationals or employers may also contact the USCIS National Customer Service Center at 1-800-375-5283 (TDD for the deaf and hard of hearing: 1-800-767-1833).

For more information about USCIS, visit uscis.gov or follow us on Twitter(@uscis), YouTube (/uscis), Facebook(/uscis),Instagram(/uscis) and the USCIS blog The Beacon.

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There is No U-Visa Without a Signed Certification

Without an executed and signed certification, the Citizenship and Immigration Services (CIS) cannot issue a U-Visa.  Certification is where the U-Visa applicant requests and a law enforcement officer confirms that the applicant suffered from a qualifying U-visa crime, and is helpful or likely to be helpful in the prosecution of the crime. The process is also referred to as “Certification of Helpfulness”.

Side view of office building

Side view of Swaray Law Office

Under the U-Visa Act, “Helpfulness” is not specifically defined.  But in several post enactment guidelines, DHS has explained the term, and in general, now means that a victim of a U-visa crime informs law enforcement that she is a victim of the crime, and has specific and detailed knowledge of the crime, and has been, or is being or likely to be helpful to law enforcement in the detection, investigation or prosecution of the crime.  Some of the ways a victim can be helpful to law enforcement is to identify the crime perpetrator, assist in his apprehension, provide evidence useful to finding and apprehending him, and agree to testify against him if the case were to go to trial.

The certification starts with the victim filling out the USCIS Form I-918 and filing it with a particular law enforcement agency, which will, in turn, assess her usefulness to the investigation of the crime, and if satisfied sign the form.  Occasionally, the process is initiated by law enforcement.  Where certification is initiated by a crime victim, it is usually done with advocate or attorney assistance.  The agency head or his delegate signs the certification.  The law enforcement agency is not obligated to certify a U-Visa application since certification is purely discretionary.  Neither the victim, nor her attorney or the DHS or any other agency can compel a certification.  By signing a certification, law enforcement attests that the victim’s crime information is true and correct to the best of his knowledge.

Certification has no statute of limitation, and valid even where the investigation or the prosecution of the case is closed.  Once the certification is completed, the law enforcement official must return it to the victim or her attorney.  It does not need to separately send it to the CIS.  The victim can then send it together with her U-Visa application to the CIS.  The head of a law enforcement agency at the federal, state of local level or prosecutor, judge or other agency with authority to investigate or prosecute a qualifying crime can issue a certification.  This includes, among others, agencies with criminal investigative authority, child and adult protective services, Equal Opportunity Commission, federal and state departments of labor, and even law enforcement officials with a memorandum of understanding with DHS.

A U-Visa certification can be revoked if the victim unreasonably refuses to provide assistance after the U-visa has been granted.  In such a case, the law enforcement agency would inform the USCIS of the victim’s refusal, and after due investigation, the visa will be revoked.  The signing of a certification does not guarantee a U-visa grant.  It is merely a fulfillment of a requirement in the U-visa process.  Other requirements have to be met for the U-visa to be ultimately granted.

A U-visa certification is valid even if the initial crime being investigated is different from the crime that is eventually prosecuted.  For example, a U-visa investigation starts with burglary, which is not a listed qualifying crime, but in the process of investigation, the person is found to be a victim of torture.

This blogger is an attorney at Swaray Law Office, LTD.  About 65% of the attorney’s practice is in immigration law.  Swaray Law Office is located in Brooklyn Center in Minnesota.  Brooklyn Center is north of Minneapolis/St. Paul.  The city is contiguous to Robbinsdale, Crystal, Brooklyn Park, Blaine, Maple Grove and Golden Valley.  Should you be interested in contacting the office, visit www.swaraylawoffice.com or 763-549-0670 or email at swarayassociates@cs.com.