"Ability to Pay" Guidance for I-140 Employers with Sample Employer Letter

USCIS recently clarified some key points regarding the agency’s analysis when deciding if an I-140 petitioning employer has the “ability to pay” to proffered wage to their prospective foreign national employee.

In March 2023, the agency released a new policy alert and updated its policy manual to include new guidance that formalizes long standing USCIS methodologies and establishes some new evidentiary criterion.

Fortunately, this update was generally more favorable to employers. The headline is that USCIS now must take a larger “totality of the circumstances” approach to adjudication of I-140 petitions.

Please find the most important takeaways from the policy guidance listed below:

• USCIS clarifies that Federal Tax Returns, Annual Reports, or Audited Financial Statements must be submitted as initial evidence of ability to pay. This was a longstanding policy that was just not formalized before 2023. 

• For employers with more than 100 or more workers,  USCIS will accept a letter from a financial officer of the company attesting to the company’s ability to pay instead of Federal Tax Returns, Annual Reports, or Audited Financial Statements. A sample letter for employers with more than 100 workers is linked as a .pdf below. Please note that USCIS has not given strict guidelines for what titles at the company can be considered a “financial officer” for purposes of signing the ability to pay letter. 

• In situations where the ability to pay may not be immediately clear, USCIS is now formally directing adjudicators to take a larger, positive emphasis on “totality of circumstances''. This means the officer must take into account additional documents such as bank account statements, company personnel records, the income and assets of other related entities, the existence of credit limits and lines, gross sales and/or revenues, and total wages paid to current employees. 

•  USCIS will allow for discretion and will generally accept weak tax returns to be combined with stronger unaudited financial statement as sufficient for ability to pay purposes;

• If a subsidiary wants to use its parent company’s financial documents to prove the subsidiary’s ability to pay, USCIS prefers if the subsidiary’s financial data is separately detailed and those separate documents are provided;

• To show ability to pay, USCIS will allow for a prorating of proffered wages for the year in which the priority date falls; 

• USCIS may request a sponsoring employer demonstrate an ability to pay the proffered wages of all its potential foreign national employees that are being sponsored for the approval of the single, immediate I-140 filing.

Sample Letter for Employers with 100+ workers

OBTAINING AN EMERGENCY TRAVEL DOCUMENT

A common question from clients and potential clients is what they should do if they need to travel outside the U.S. and, if they are able to travel, what impact that will have on their immigration status and/or pending applications. This article will cover a few common scenarios in which someone is eligible to apply for an emergency travel document and the process to obtain this permit. 

Travel Permits Tied to Other Applications

In certain cases, if you have a pending adjustment of status application, you can file an application for a travel document called an advance parole document. This document allows you to return to the U.S. after temporary travel abroad without abandoning your application for adjustment of status. To obtain an emergency travel document, the best practice is to contact USCIS and request an emergency appointment at the local USCIS field office. When you attend this appointment, you will need to bring a completed I-131, Application for Travel Document, and all required supporting documents, including proof of your emergency or humanitarian situation. If USCIS approves your request for an emergency travel document, the agency typically issues the travel document on the same day. These travel documents are typically valid for a maximum period of 30 days.

You can also utilize this process if you have Deferred Action for Childhood Arrivals (DACA), a pending I-589, Application for Asylum and Withholding of Removal, Temporary Protected Status (TPS), and certain other applications. Not all travel permits require an emergency or humanitarian situation. However, current processing times for travel permits issued without expedited processing are significantly delayed.

Important Note Regarding Foreign Travel

An advance parole document does not guarantee that you will be allowed to reenter the U.S. and it is important that you speak to a qualified legal professional regarding the risks and benefits of traveling using an emergency document. 

**This article is intended to be construed as individual legal advice and does not create an attorney/client relationship.**

Evidence that can be used to show Petitioner’s required tax-exempt status when sponsoring a religious worker

An R-1 nonimmigrant is a noncitizen who is coming to the United States temporarily to work at least part time (an average of at least 20 hours per week) as a minister or in a religious vocation or occupation and be employed by a:

1. Non-profit religious organization in the United States;

2. Religious organization that is authorized by a group tax exemption holder to use its group tax exemption; or

3. Non-profit organization which is affiliated with a religious denomination in the United States.

 The organization’s qualifying tax status can be shown in a few ways depending on the scenario, as discussed below:

Scenario #1 - The Petitioner has it’s own IRS 501(c)(3) letter:

In this case, the petitioner must provide its currently valid determination letter from the IRS showing that the organization is tax-exempt.

A valid determination letter may include a letter that the IRS issued before the effective date of the Internal Revenue Code of 1986, or may be issued under subsequent Internal Revenue Code revisions.

Scenario # 2 - The Petitioner is recognized as tax-exempt under a group tax exemption:

In this case, the petitioner must provide a currently valid IRS group tax-exemption determination letter and documentation that the organization is covered under the group tax exemption. Examples include a:

• Letter from the parent organization authorizing the petitioner to use its group tax exemption;

• Directory for that organization listing the petitioner as a member of the group;

• Membership listing on the parent organization’s website that confirms coverage under its exemption; or

• Letter from the IRS confirming the coverage.

The IRS determination letters, whether a group-tax exemption letter or an individual organization letter, need to identify the category of tax exemption as a religious organization. However, 

** Please note that if the IRS determination letter does not specifically identify the organization’s tax exemption as a religious organization, Petitioner must provide additional evidence regarding the organization’s religious “nature and purpose.” 

This can include providing Petitioner’s:

• Articles of incorporation or bylaw

•  Flyers and brochures (online or physical);

•  Online literature that describes the religious purpose and nature of the organization.

Scenario # 3 - The Petitioner is affiliated with a religious denomination

In this case, the petitioner must provide:

• A currently valid determination letter from the IRS showing that the organization is tax-exempt;

• Documentation that establishes the religious nature and purpose of the organization, including, but not limited to:

• A copy of the organizing instrument of the organization that specifies the purposes of the organization;

• Organizational literature describing the religious purpose and nature of the activities of the organization; and

• A religious denomination certification, included as part of the Form I-129, Supplement R, stating that the petitioning organization is affiliated with the religious denomination. The religious denomination certification should be signed by an organization other than the petitioning organization, and attest that the petitioning organization is part of the same religious denomination as the attesting organization.

Documents to Include with Your N-400

Applying for citizenship in the U.S. is an exciting step in anyone’s immigration journey. However, like all things having to do with immigration, it can also be quite stressful and confusing. Some common questions include: 

↠ What form(s) do I use?

↠ How do I answer the questions?

↠ What if I fill part of it out wrong?

↠ What documents do I include?

↠ What can I expect at the interview?

↠What happens if I don’t pass the civics and history test?

This article will focus on the “What documents do I include?” question. Specifically, this article will address what documents to include when you are applying for naturalization because you have been a lawful permanent resident who is married to and residing with a U.S. citizen spouse for at least three years. This article will assume the applicant has no arrests, citations or detention and has not been separated from the U.S. citizen spouse. Basically, it is assuming a completely “clean” and straightforward case.

Here are the documents we include with these applications: 

↠ A copy of the front and back of the applicant’s green card; 

↠ A copy of the applicant’s tax returns for the most recent three years. If an applicant 

   files as “married but filing separately,” we also include the spouse’s taxes;

↠ A copy of the applicant’s marriage certificate and, if applicable, proof that all prior 

   marriages for the applicant and the applicant’s spouse have been terminated;

↠ If applicable, we attach the birth certificates for the applicant’s children;

↠ Proof that the applicant has been residing with their U.S. citizen spouse for three 

   years. This can include joint leases or mortgages, joint insurance statements, joint bills 

   covering the three year period, etc.

↠ Evidence of the Applicant’s good moral character. In practice, if an applicant has no 

   arrests, citations, detention, etc., letters of recommendation are generally not 

   necessary. This changes if the applicant has negative information in their record. 

If you have any questions about eligibility for naturalization, what documents to include, etc., you should consult with an attorney.

Travel by TPS Beneficiaries May Now Allow Them to Obtain a Green Card from within the U.S.

On July 1, 2022, USCIS updated its interpretation of the effects of authorized travel by Temporary Protected Status (TPS) beneficiaries. This update means that many more TPS beneficiaries may be eligible to obtain a green card from within the United States after travel. 

The first change is that USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries. Instead, there will be a new TPS travel authorization document. 

Secondly, if a TPS beneficiary travels successfully with this new travel authorization document, they will be considered “inspected and admitted” and are “present in the United States pursuant to a lawful admission.” This means that the TPS beneficiary may be able to adjust status to that of a lawful permanent resident under INA 245, even if the TPS beneficiary was present without admission or parole when initially granted TPS. 

This interpretation change is likely to impact many TPS beneficiaries in the United States. Previously, if a TPS beneficiary married a US citizen or had a US citizen over 21, in many instances the TPS beneficiary was unable to adjust status in the United States because they were not considered to be inspected and admitted to the United States. Now, the same TPS beneficiary can travel outside of the U.S. and be legally admitted and inspected to the United States. 

USCIS issues new policy guidance on effect of returning to the United States during the statutory 3-year or 10- year period after a departure or removal

On June 24, 2022 the U.S. Citizenship and Immigration Services (USCIS) issued new policy guidance  to explain the effect of a non-citizen returning to the United States during the statutory 3-year or 10-year period after departure or removal (whichever applies) on inadmissibility determinations under secion 212(a)(9)(B) of the Immigration and Nationality Act.

Under this new interpretation, a foreign national who again seeks admission in the United States after the expiration of either a 3 or 10-year ban to enter the United States is not considered inadmissible even if he or she returned to the United States, with or without authorization, during the statutory ban period. Essentially, the location of the non-citizen while the statutory 3 year or 10 year period runs no longer matters. 

This new policy is a significant change to USCIS’s previous interpretation. In 1996, Congress passed a law that specified the grounds of inadmissibility regarding the accrual of unlawful presence in the United States by a noncitizen individual. According to the law, a foreign national is inadmissible if she or he accrues more than 180 days of unlawful presence in the United States, departs or is removed, and again seeks admission within 3- years (if they departed the U.S.) or 10-years (if they were removed from the U.S.). Previously USCIS interpreted this to mean that a non-citizen is inadmissible to the United States if they did not spend the entire statutory 3 year or 10 year period outside of the United States.

Now however, USCIS will not deem a noncitizen individual who has accrued 180 days or more of unlawful presence inadmissible after the expiration of the statutory ban period regardless of his or her location. In effect, this means that certain non-citizens can now file for adjustment of status in the United States without filing a I-601 waiver, which can save them considerable time and money. If you think this new interpretation  may apply to your situation, please check with our attorneys. Some non-citizens may also be able to file a motion to reopen their case if they were denied based on USCIS’s now changed policy. 

DHS Designates Afghanistan for Temporary Protected Status for 18 Months

On March 15, 2022, the Department of Homeland Security (DHS) designated Afghanistan for Temporary Protected Status (TPS). This designation lasts for 18 months from the date the designation is published in the Federal Register. 

Are you eligible? 

Nationals of Afghanistan residing in the U.S. are eligible for TPS if they meet the following requirements: 

1. You must have continuously resided in the U.S. as of March 15, 2022; 

2. You must file you application for TPS within the registration period; 

3. You must establish that you are otherwise eligible for TPS. There are certain bars to eligibility which an attorney can discuss with you if you are interested in applying for TPS. 

If you have questions about your eligibility for TPS, please contact us at www.fourcornerslaw.com or 503.446.3396.

Ukraine Designated for Temporary Protected Status

On March 3, 2022, the Department of Homeland Security (DHS) designated Ukraine for Temporary Protected Status (TPS). This designation lasts for 18 months from the date the designation is published in the Federal Register. As of the date of this article, the designation has not been published in the Federal Register.

The Secretary of DHS stated that, “Russia’s premeditated and unprovoked attack on Ukraine has resulted in an ongoing war, senseless violence, and Ukrainians forced to seek refuge in other countries. In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.” In response to this crisis, DHS has designated Ukraine for TPS. If you are granted TPS, you are in lawful status for the period of your TPS and are eligible for employment authorization.  

Are you eligible? 

Ukrainian nationals residing in the U.S. are eligible for TPS if they meet the following requirements: 

1. You must have continuously resided in the U.S. as of March 1, 2022; 

2. You must file you application for TPS within the registration period; 

3. You must establish that you are otherwise eligible for TPS. There are certain bars to eligibility which an attorney can discuss with you if you are interested in applying for TPS. 
   If you have questions about your eligibility for TPS, please contact us at www.fourcornerslaw.com or 503.446.3396.

New Presidential Order Sets COVID-19 Vaccination Requirement for Foreign Air Travelers

In September, the Biden administration announced that they were going to ease the COVID-19-related barriers faced by foreign nationals attempting to enter the U.S. via air travel.  Now the President has signed an order that eases blanket restrictions and focuses on the COVID-19 vaccination status of the foreign national traveller. 

 On October 25,  President Biden signed an order requiring most foreign national air travelers to be vaccinated against COVID-19.  Despite adding this requirement for travelers, this order does away with the restrictive country-by-country rules that have been in place since early 2020 for foreign nationals travelling from China, India and most of Europe.  The new order will go into effect on November 8, 2021.

New COVID-19 vaccination requirement

Foreign air travelers will be required to show vaccination documentation from an "official source.”  Airlines need to confirm the travellers last dose was at least two weeks earlier than the travel date.

A foreign traveller looking to enter the United States can show proof that they have been vaccinated with any vaccine authorized for use by U.S. regulators or the World Health Organization. As of now, the Sputnik vaccine does not meet the requirements. 

Exceptions

There will be limited exceptions to the vaccine requirement. Children under 18 will be exempt from the new vaccine requirements. As well as foreign nationals with certain medical issues. Additionally, non-tourist travelers from nearly 50 countries with nationwide vaccination rates of less than 10% will also be eligible for exemption from the rules. There is no religious exemption from the vaccination requirement. 

Foreign nationals receiving exemptions will need to provide proof of a negative COVID-19 test within one day of departing on their trip to the United States. If a foreign national receives an exemption, most of these travelers will need to be vaccinated against COVID-19 within 60 days after arriving in the United States.

The Biden administration will issue details later this week of its plans to lift restrictions to land border crossings for vaccinated foreign nationals.

Greyhound Settles Lawsuit Over Warrantless Immigration Searches and Detentions in Washington State

The State of Washington filed a lawsuit against Greyhound Lines, Inc. alleging that its conduct in allowing immigration agents to conduct warrantless and suspicionless enforcement actions in the Greyhound station located in Spokane, Washington violated the State’s anti-discrimination protections and the Consumer Protect Act. 

CBP and ICE agents have a history of boarding buses in the Spokane Greyhound station and detaining passengers to inquire about their immigration status. In January 2019, comedian Mohanad Elshieky was detained by CBP agents at the Greyhound station in Spokane and the incident resulted in CBP paying Elshieky a settlement of $35,000 after Elshieky sued for unlawful detention. The Spokane City Council attempted to ban the practice of immigration agents boarding buses at the station but the government released a memo taking the position that the practice is protected by federal law. After the release of that memo, Greyhound announced it would no longer allow immigration authorities onto their premises without a warrant even though the company previously took the position that they were powerless to stop the practice. 

Greyhound has now reached a settlement with Washington in which the company agreed to take the following steps: 

1. Pay $2.2 million into a settlement fund to provide restitution to those impacted by the warrantless searches and detentions; 

2. Greyhound will not allow immigration officials onto its buses or non-public property for the purpose of warrantless or suspicionless searches and detentions; 

3. Greyhound must not post or provide deceptive information about the government’s ability to conduct warrantless or suspicionless enforcement activity; 

4. Greyhound must implement a policy that clarifies that the company and its employees will not consent to allowing immigration officials to conduct a search without a judicially enforceable warrant; 

5. Greyhound must implement a procedure for maintaining records regarding all warrants and demands for access to their property;

6. Greyhound must provide clear notice on its buses operating in Washington stating that it does not consent to immigration agents boarding its buses or entering its property for the purpose of conducting warrantless or suspicionless searches. 

The Washington State Attorney General will create a claims procedure for people who were negatively impacted by warrantless searches. The Attorney General will also make reasonable efforts to locate individuals who may be entitled to a restitution payment from the settlement fund. 

US to ease COVID-19 travel restrictions in November 2021

The Biden administration has stated that the U.S. will allow foreign nationals to enter the country if they have vaccination proof and a negative COVID-19 test later this fall.  The change is to go into effect this November.  This is a major shift from the confusing travel restrictions that have been impacting travel between many countries and the United States.  Currently travel is restricted for foreign nationals who have in the prior 14 days been in the United Kingdom, European Union, China, India, Iran, Republic of Ireland, Brazil or South Africa.

Additionally, the Biden administration will also tighten testing rules for unvaccinated American citizens, who will need to be tested before and after they arrive in the United States. 

TPS Extended for Certain Countries

USCIS issued a notice announcing the extension of Temporary Protected Status (TPS) for the following countries: (1) El Salvador; (2) Haiti; (3) Nicaragua; (4) Sudan; (5) Honduras; and (6) Nepal. If you are the beneficiary of TPS from one of these countries, that means that USCIS has automatically extended your employment authorization document (work card). USCIS has also extended I-94s for TPS beneficiaries from the above countries. 

For beneficiaries of TPS from the above-listed countries, USCIS has extended the validity of employment authorization through December 31, 2022 provided the authorizations were issued during a certain time frame. If you have questions about the validity of your TPS or work authorization, you should contact an attorney to review your documentation. 

COVID VACCINE REQUIREMENT FOR MEDICAL EXAMS

U.S. Citizenship and Immigration Services (USCIS) announced that, as of October 1, 2021, immigrants subject to the requirement of a medical examination must complete a COVID-19 vaccine series and provide documentation of vaccination. This applies to all medical exams signed on or after October 1, 2021. For exams completed on or after October 1, 2021, applicants must provide proof of vaccination in the form of a record or medical chart with notes from appropriate medical personnel. Self-reported vaccinations will not be accepted as proof of vaccination. 

There are blanket waivers to the vaccination requirement in the following circumstances: 

1. If an applicant is too young to receive the vaccine; 

2. If an applicant has a medical contraindication to the vaccine; 

3. If an applicant resides in an area where the applicant does not have access to an 

     approved vaccine or the supply is so low that it would cause an unreasonable delay in 

    the applicant’s application;

Applicants can apply for an individual waiver based on religious or moral objections. If an applicant seeks an individual waiver, the applicant needs to file a Form I-601. To obtain a waiver of the vaccination requirement, an applicant must establish the following: 

1. The applicant must be opposed to all vaccines in any form; 

2. The applicant’s objection must be based on religious or moral beliefs; and 

3. The applicant’s religious belief or moral conviction must be sincere. 

These waivers are also subject to an officer’s discretion, which means that prior to granting a waiver, in addition to considering the above-listed requirements, the officer will determine if the waiver should be granted as a matter of discretion.

Marriage-Based Adjustment of Status Applications - Sample Cover Letters and Tips for Filing

A marriage-based application for legal permanent residence in the United States should be well organized and prepared. A simple cover letter can help you organize the file for the adjudicating officer. Accordingly, we are providing you with some important factors to keep in mind below along with free sample cover letters that can be used as a guide.

• You should double (and triple!) check the current filing fees and current form editions that are being accepted by USCIS. The fees and editions change regularly. For example, on October 13, 2021 USCIS will only accept the newest edition form of Form I-485. Any previous version sent after this date will be rejected by the agency. 

• If any of your documents are not in English, you need to include certificate English translations with these documents. Otherwise, you will receive a Request for Evidence which can delay the case;

• Keep in mind that the Form I-693, Results of Medical Examination and Vaccination Record must be signed by the Civil Surgeon within 60 days of application submission. The exams expire in 2 years. For this reason, we advise our clients to hold off on submitting the medical exam and instead bring the sealed medical exam to the adjustment of status interview. 

• Check that you are sending the application to the correct address. The correct address depends on your location and/or whether you mail the package with USPS or FedEx, UPS or DHL.  Check USCIS’s website at https://www.uscis.gov/ to confirm where you should file the application.

• If you studied in the United States, remember to include all copies of your Forms I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student; 

• Make sure to include a printout of your I-94, along with a copy of any stamp you received in your passport upon your most recent entry to the United States. Your I-94 can be retrieved from the U.S. Custom and Border Protection’s website at  https://i94.cbp.dhs.gov/

• Double-check that you have signed the forms in the correct places and that the pages are in the correct order. These are common reasons that USCIS rejects applications.

• Tax transcripts can be easier. Obtain them as soon as possible. 

Please find some samples of cover letters below. One sample includes a section for a joint sponsor and the other does not. These cover letters include language regarding not including the medical exam. Please note that each case is different so the content of these samples will not apply to every situation. 

• Sample Cover Letter 

• Sample Cover Letter (includes a Joint Sponsor)

The Return of Domestic Violence Asylum

In 2014, the Board of Immigration Appeals (BIA) issued the decision Matter of A-R-C-G-, which opened a new avenue for asylum seekers. Specifically, the BIA held that, depending on the facts of a case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for purposes of asylum. The reasoning in this case also allowed women from other countries in abusive relationships to apply for asylum as long as they met the standards set in Matter of A-R-C-G- and its subsequent cases. 

In 2018, former Attorney General Jeff Sessions overruled Matter of A-R-C-G- and its subsequent cases in a decision called Matter of A-B-. In this case, the former Attorney General did not just overrule Matter of A-R-C-G-, which allowed domestic violence survivors from certain societies to apply for asylum, he made it more difficult for anyone being persecuted by a private actor to have a successful claim of asylum. 

In June of 2021, current Attorney General, Merrick Garland, overruled Matter of A-B- and restored an applicant’s ability to pursue asylum based on domestic violence in certain circumstances. The government is currently in the process of formulating official rules regarding domestic violence asylum. However, until those rules are drafted, published, and adopted, domestic violence asylum cases will be decided under the framework in Matter of A-R-C-G- and its subsequent cases. This is a win for asylum seekers and survivors of domestic violence that hopefully represents what will be a continued stark departure from the former administration’s relentless assault on the asylum process. 

**This article is meant for general informational purposes only. Asylum is a complicated area of immigration law and we highly recommend seeking legal counsel to evaluate your asylum claim.**

What is Happening with DACA?

If you are confused as to the state of the DACA program, you are not alone. It feels like there are never ending court decisions and headlines and they are all contradictory. Recently, the Supreme Court held that the Trump Administration’s termination of the DACA program was not lawful. However, the Supreme Court did not rule on the legality of the program. 

On July 16, 2021, a federal judge in Texas ruled that the DACA program is unlawful and ordered U.S. Citizenship and Immigration Services (USCIS) to stop granting initial DACA applications. The order does not impact renewal applications. That leaves the question, what is the current state of the DACA program? 

As of the date of this article, USCIS is accepting initial and renewal applications. However, USCIS can only grant renewal applications. USCIS will also continue to accept and, in some cases, grant applications for advance parole for people who have been granted DACA. The Biden Administration issued a statement confirming they will appeal the ruling of the District Court in Texas.  

Good news for students! USCIS eliminates the burdensome F-1 "gap" policy

On July 20, 2021, U.S. Citizenship and Immigration Services (USCIS) announced a new policy that eliminates an arduous requirement for individuals who have applied for a change of status (COS) to F-1 status.  

For context, before this policy change, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status.  Practically this led to applicants having to file an initial COS, and while that application was pending, having to file subsequent applications to make sure that they will not have a “gap” in their status.

Under the new policy, USCIS no longer requires applicants to submit subsequent applications for extension or change of nonimmigrant status while the COS application to F-1 status is pending with USCIS.  It is important to note that an applicant’s nonimmigrant status must be unexpired at the time of filing the initial COS application and the applicant must not violate their nonimmigrant status. 

You can read more about this policy change at USCIS’s website here. 

Important Updates to USCIS Policy

USCIS recently announced several policy updates aimed at improving immigration services. These changes impact requests for expedited processing, the validity period for certain employment authorization documents, also known as “work permits,” and the issuance of Requests for Evidence and Notices of Intent to Deny. 

Requests for Expedited Processing

USCIS reinstated its policy of allowing nonprofits whose request is in furtherance of cultural and social interests of the U.S. to request expedited processing for benefits even if the application is eligible for premium processing. USCIS also clarified the circumstances under which work permits can be expedited based on severe financial loss to a person or company. USCIS clarified that job loss can be sufficient to show severe financial loss to an applicant or company based on the individual circumstances. 

Validity Period for Certain Work Permits

Certain applicants for adjustment of status are eligible to receive a work permit while applications to adjust status are pending. Prior to the new policy guidance, the work permit would be valid for only one year. USCIS will now issue those work permits with a validity period of two years. 

Requests for Evidence and Notices of Intent to Deny

USCIS announced that they are once again following the policy guidance from their June of 2013 memo when adjudicating applications for benefits. Under this memo, if an application is submitted that is missing evidence that could demonstrate eligibility, the proper course of action is for USCIS to issue a Request for Evidence or Notice of Intent to Deny and give the applicant time to submit the requested evidence or correct a deficiency in the application. In July of 2018, the Trump Administration rescinded the June 2013 memo and empowered officers to simply deny applications instead of issuing a Request for Evidence or Notice of Intent to Deny. This caused harm to applicants who submitted applications that omitted documentation or information through an innocent mistake. USCIS rescinded the July 2018 memo and will, once again, be following the June 2013 memo. 

What does a Business Plan for an E-2 visa petition need to include?

The E2 visa program allows certain entrepreneurs to enter the U.S. to work in the United States as non-immigrant business investors.  An E-2 visa requires that the entrepreneur invest a substantial amount of money in a new or existing U.S. business. 

In order to be eligible for an E-2 visa, the entrepreneur must be from a country with a treaty of commerce and navigation with the United States or a country designated by Congress as eligible for participation in the E-2 nonimmigrant visa program. A list of the current treaty countries can be found here. 

Most successful E-2 visa petitions include a robust and detailed business plan. The Business Plan needs to contain content specifically tailored for the E-2 petition, including solid financial projections and goals, details about the unique strengths of the company, and an explanation how the company will benefit the U.S. economy. The business plan should be easy for the adjudicating officer to follow - keep in mind that the officer is likely not an expert in your industry.

Specifically, a business plan submitted with a E-2 visa petition should contain the following:

An Executive Summary stating clearly what the business is, how much has been invested in it, how will the business succeed, and what will be the benefit for the United States in terms of jobs created and taxes generated by the business.

A detailed description of the business and its operations. This should include information regarding the company's location, including the square footage, whether that area would be sufficient to allow for the hiring of additional employees, and whether or not the location has been purchased by the company or leased.

A description of the ownership structure and management of the company, with special focus on the role of the investor(s) in the business.

A detailed market analysis.  This should generally describe the market (i.e size of market, current trends, market forecast) that the company is involved with. 

A description of the company's competitive advantages (i.e. A highly qualified staff, a new technology, a unique marketing strategy or a prime location); 

A detailed operating plan and plan for growth (for at least 3 years);

An explanation of what kind of marketing the company will undertake, and what amount will be spent on marketing;

A summary of the investments made into the company.  The business plan should specifically indicate  the total amount invested and the total amount already spent, and note any funds spent from the investor’s personal account on behalf of the company.

A detailed personnel plan. This plan should be as detailed as possible, especially regarding specific duties of the current positions and the positions that will be added as the company grows.

A detailed management plan. This plan should include all current and future key management personnel, including the E2 investor(s).  The management team's employment history and education level should be discussed, with focus on how they are qualified for the position within the company.  The reviewing officer should be able to understand clearly from this plan how the company will benefit the U.S. in terms of new job creation and generating payroll tax.

Detailed financial projections.  These projections should describe how the E-2 business will be profitable in its first few years of operation by providing a realistic sales forecast, a pro-forma profit and loss statement, a pro-forma balance sheet and a calculation of the taxes the company is expected to generate.  This section of the plan should make it clear to the officer that the company will be able to generate profit and grow without bank loans and further private equity financing.

If you need guidance in drafting your business plan, we offer consultations and drafting services for business plans used for E-2 visa petitions.

Washington Bans For-Profit Detention Centers Including Immigration Detention Centers

The Washington State Legislature passed a law, which the Governor signed, banning for profit detention centers in the State of Washington. This also applies to immigration detention centers, which means that the Northwest Detention Center (NWDC), a large for-profit immigration detention center owned by GEO, a private company, will have to be shut down by 2025.

The NWDC is a 1575-bed privately owned, for profit detention center used to detain immigrants pending resolution of removal defense proceedings. GEO has a long-standing relationship with the U.S. government that dates back to the 1980s. GEO operates under multiple contracts with the U.S. government, in particular Immigration and Customs Enforcement (ICE). New York, Illinois, Nevada, and California have all enacted laws similar to the Washington law. In 2019, GEO signed new contracts with ICE for five GEO-owned private detention centers in California with a term of 15 years. Those contracts were expected to generate hundreds of millions of dollars in revenue for GEO. GEO sued the State of California over the law and the federal judge presiding over the case ruled largely in favor of the State of California. GEO appealed the ruling and the appeal is pending.

The Biden Administration filed a briefing in the California case in which it adopted the Trump Administration’s arguments that the state law is unconstitutional. The Biden Administration did order agencies not to renew contracts with private prisons but specifically exempted immigration detention facilities from that order. For the time being, the Biden Administration is fighting to maintain the status quo as it relates to immigration detention and keeping immigrants in these for profit, private detention centers. This will leave it to the states to determine whether for-profit detention centers are welcome within their borders. It is highly likely that the Administration will also challenge the Washington law as unconstitutional.