Month: September 2016

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Updates

Importance of Renewing Your Green Card Before It Expires

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A few weeks ago, there was a settlement by the State of Arizona in the case of Valle del Sol et al. v. Whiting et al , a lawsuit brought against SB1070 by immigrant rights and civil rights organization. The case was filed against SB1070 for its anti immigrant provisions. Through the settlement, the Arizona local enforcers are now prohibited, among others, from stopping or detaining individuals based solely on ethnicity and race and from questioning them about their immigration status. This is a positive development that prohibits racial profiling. However, despite this new development, the USCIS recently emphasized the importance of maintaining a green card that is valid and not expired.

Proof of Residency

Immigrant visa holders may prove resident status through an I-551 or popularly known as the green card. If the green card is not available, a USCIS temporary I-551 or Alien Documentary Identification and Telecommunication (ADIT) stamp on the passport shall be temporarily accepted. The green card is used as proof of legal immigrant visa status and can be used to re-enter if returning to un-relinquished, lawful permanent residence after temporary absence of less than one year. A copy of a green card is also used to show proof of valid immigrant visa status when petitioning family members.

Renewing the I-551

Permanent resident card or I-551 expires but not lawful permanent resident status every 10 years. At least 6 months prior to its expiration, the permanent resident must file for a replacement I-551 by filing a USCIS Form I-90. This may be filed directly to the USCIS or may be done electronically. If the green card holder has an expired I-551 and is outside the United States, he may not file the Form I-90. He must return to the U.S. and file the I-90. Before returning to the United States, the green card holder with the expired green card must obtain a “boarding foil” or a boarding letter from the USCIS at the US Embassy abroad to allow the person to return to the U.S. Upon arrival in the U.S. this individual may then file for the I-90.

While the I-90 is pending, USCIS must provide an adequate temporary substitution in the form of an endorsed I-94 or an ADIT stamp indicating temporary proof of resident status.

Filing for Naturalization

If the immigrant visa holder has a green card which is expired or has a validity period of less than 6 months, the USCIS will require this individual to first file for an I-90 before filing an application for naturalization is accepted. The proof of filing the I-90 will be the receipt notice and this receipt notice may be presented to the USCIS for an ADIT stamp as proof of immigrant status.

On the other hand, if the individual has a validity of more than 6 months on the I-551 or green card, there is no need to file for renewal or I-90 before filing an application for naturalization.

There is particular provision in the current law where an individual is required to maintain a valid green card. It is a misdemeanor under 8 USC § 1304(e) for a lawful permanent resident to fail to keep his green card at all times. This means that the green card must always have a valid date and must not be expired. Despite the settlement of the lawsuit mentioned above, it important to still maintain a valid green card or risk being charged for a misdemeanor.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

Categories
Updates

USCIS proposes parole status for foreign entrepreneurs

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The U.S. Citizenship and Immigration Services (USCIS) released a proposed rule that will allow the individuals referred to as “international entrepreneurs” to enter the United States temporarily on parole.  The parole status is similar to the status given to children of Filipino war veterans in a recent policy implemented a couple of months ago but in a different context. This recent international entrepreneur rule is considered to be a significant public benefit parole program to promote entrepreneurship and job creation.

There is a gap in the current immigration law  that will permit start up entrepreneurs  who receive significant capital investment from U.S. investors to stay and operate their businesses in the United States. Foreign students who are potential entrepreneurs and founders of start-ups have limited ways  to stay on a temporary visa after they graduate. Young immigrants who are researchers, innovators specifically in new technologies are not afforded sufficient avenues to develop their own start up businesses within the United States. The proposed  policy allows USCIS to use its discretionary parole authority to fill this gap and grant parole to founders of start-up entities whose entry would provide “significant public benefit” and whose start-ups have potential to facilitate research and development , create jobs for U.S. workers or otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.

The proposed rule will grant parole status to an applicant who is an “entrepreneur”  of a start-up who has an active role in the operations and growth of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an investors visa where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.”

There are 3 alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

It is expected that this proposed rule will be implemented before end of this year; and, as soon as the rules are final, the USCIS will start accepting applications on new USCIS Form 941. The filing fee for this application is $1200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Recently it is noticeable that the current administration has been releasing new immigration policies. Even with a few months left before President Obama leaves office, he has somehow made good his promise to use his Executive power to fill in the gaps that have been left open by the failure of a divided Congress to pass any form of immigration legislation that is responsive to the competitive new global economy.

(For inquiries, you may reach Atty. Lourdes Santos Tancinco, Esq., at 1 888 930 0808 or email law@tancinco.com. This article also appears in the Philippine Daily Inquirer.)