Multinational business owners and executives are the elite, as far as the US immigration law is concerned. This is why they are classified as having the highest priority when it comes to US Permanent Residency. Their cases are exempted from Labor Certification, and glide through the Green Card process fairly effortlessly, as long as they meet the minimum requirements: At least 1 years employment as an executive (or professional manager) for a company that has an affiliate, subsidiary or parent in either the US, or any foreign country.

While the above mentioned process is fairly obvious and straightforward in the case of an established ownership arrangement between companies on both sides of the ocean (or, on either side of the border, in the case of Canadian and Mexican entities), it is much less apparent when there is only a foreign company (or companies) and no related US entity. In such a case, the relevant US immigration laws and regulations provide for the following special route to US permanent residency through business expansion:

1.) Establishment of a new, qualifying US organization;

2.) Transfer of a Director from the foreign company to the new US organization, via an L1 visa, to develop and direct the start-up operations, including the staffing of the organization; and

3.) Petition for Permanent Residency for the Director and his or her dependents.

The entire process from initial transfer to US permanent residency status, if properly and expeditiously handled, may take as little as 1.5 years to complete. In the interim, both the foreign company and the US company must continue to trade in earnest.

While the size or the turnover of the foreign company is not directly relevant to the granting of the initial L1 transfer visa, only those businesses or organizations that lend themselves to a corporate structure are likely to be found to be qualifying organizations. This usually rules out retail business and restaurants, unless the parent organization owns and operates multiple units from its corporate offices.

Likewise, while the US subsidiary or affiliate need not mirror the foreign company in its business activities, it must also lend itself to a corporate structure to be considered a qualifying organization. Thus, if a foreign company's goal is to transfer a director to the United States - either temporarily or permanently - we are of the opinion that it should steer clear of retails shops and restaurants.

The ease of the above-specified process has recently led some USCIS Service Centers to raise concerns regarding the bona fides of some of these business expansions, especially those originating outside of Western Europe. These concerns are expressed in the issuance of lengthy Requests for Evidence (RFEs), which request copies of corporate minutes and resolutions, as well as feasibility studies evidencing that the business expansion plan reasonably preceded the initial transfer petition. Thus, it is recommended that one allow no less than 90 days to properly law the groundwork prior to the filing of an expansion petition with USCIS.

By: Orlando Ortega-Medina
For more information please contact Ortega-Medina & Associates, http://www.ortega-medina.com.

Orlando Ortega-Medina is lead counsel for the U.S. business immigration law firm of Ortega-Medina & Associates, headquartered in San Francisco, California. The firm also maintains an EU gateway office in London, UK. Mr. Ortega-Medina has particular expertise and insight into complex L1 visa and E2 visa cases, and is frequently engaged by other counsel to troubleshoot visa denials.

MYTH: If you have ever been convicted of a any criminal offense, you are automatically inadmissible to the United States and must apply for a waiver.

"Hello, Attorney Ortega, I need a waiver and I need it fast. I am booked on a flight to Miami that leaves in a week to attend a convention, and I just found out that I am inadmissible."

"Have you already been refused entry to the United States?"

"No, but?"

"Then what makes you think you are inadmissible?"

"Well, I have a criminal conviction."

"All right, we will get to that in a second; why do you think that you're inadmissible?"

"A friend of mine told me that having a criminal conviction makes me automatically inadmissible. So I called the U.S. embassy, and they confirmed it and said I would definitely need a waiver. They told me it would take 20 weeks to process, but I can't wait that long!"

"What was the conviction for?"

"Drunk driving."

"Is that your only conviction?"

"Yes."

"What was the sentence?"

"Three years probations, plus I had to pay a fine and go to traffic school."

"Anything else?"

"No. That's it."

Our office receives frantic telephone calls like the one quoted above on almost a daily basis, from people about to embark on a trip to the United States who have been told that they are inadmissible to the United States because of a past criminal conviction. By the time we speak with them, many of these people are almost resigned to canceling their travel plans.

These individuals have been told by their employers, their colleagues, or even the U.S. embassy that their single criminal conviction makes them inadmissible and that they must apply for a waiver -- which could take from 6 months to a year to process. That's when the panic sets in. Airline tickets have already been purchase, and hotel rooms reserved; friends and family are eagerly awaiting at the other end. "Isn't there a faster way to get a waiver?" they ask.

In fact, many individuals may not be inadmissible at all regardless of their conviction. Or if they are, they may qualify for what is known as the "petty offense exception" set out in section 212 of the Immigration and Nationality Act (the Act).

According to the Act, a noncitizen who has been convicted, or who admits the essential elements, of a crime involving moral turpitude (CMT) is inadmissible. Thus, the first thing to consider is whether ones conviction falls under the CMT category or not. By way of example, a single drunk driving conviction does not fall under this category, and does not render one inadmissible. In other words, a waiver is not required in this circumstance. However, the question of whether a particular offense is or is not a CMT requires some research.

If research reveals that one has been convicted of even a single CMT, then one is clearly inadmissible under the Act. However the Act sets out an exception that has come to be known as the "petty offense exception". To qualify for the "petty offense exception", an applicant for admission to the United States must show:

a.) he or she committed only one crime;
b.) the maximum penalty possible for the crime did not exceed imprisonment for one year; and
c.) the non citizen seeking admission was not sentenced to a term of imprisonment longer than 6 months.

Clearly, the only way to determine whether one meets the above elements of the exception requires an examination of both the conviction documents and the underlying law of the offense.

The good news is that if one satisfies the requirements of the "petty offense exception", one may enter the United States without first visiting the embassy or enduring the lengthy and onerous burden of applying for a waiver.

Ultimately, the decision to admit or not to admit in such a case lies entirely in the hands of the inspecting officer at the U.S. port of entry. This officer is the person that must be convinced whether or not one is admissible under section 212 of the Act. Thus, to properly claim the "petty offense exception" it is essential that one be armed with the evidence and (preferably) the applicable legal authority.

Copyright 2006, Ortega-Medina & Associates Ltd. All Rights Reserved.

By: Orlando Ortega-Medina
http://www.ortega-medina.com
Orlando Ortega-Medina is lead counsel for the United States business immigration law firm of Ortega-Medina & Associates Ltd., headquartered in London, England (UK). Prior to practicing in the field of business immigration and consular law, Mr. Ortega-Medina practiced both Criminal Defense and Deportation Defense in the State of California. Further, over the past five years he has represented scores of individuals from both the UK and Canada in a myriad of waiver matters. Thus, he has particular expertise and insight into the issue of criminal inadmissibility and its effects on both non-immigrant and immigrant visas.

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Marriage is a very important concept and establishment in the United States and as such Congress has determined that a foreign national who marries a United States Citizen spouse has the immediate ability to file for a permanent residence under a first category preference. It is good to know that a permanent residents (“greencard” holders) can also file a marriage petition however the waiting time for the priority date is long and therefore does not confer immediate ability to the beneficiary to obtain a greencard.

The first consideration in marriage cases is that the marriage has to be bona fide (literally in “good faith”) or a marriage not with the intention of solely getting immigration benefits. A good faith marriage is predicated on the intent of the bride and groom to establish a life together at the time that they were married. The United States Citizenship and Immigration Services (USCIS) formerly the INS (“Immigration”), has various criteria for determining if a marriage was entered in good faith. These include but are not limited to commingling of assets, joint leases, joint financial responsibilities, and pictures. It is generally accepted that a couple knows the most intimate affairs of each other. This is why it is very important to document your marriage in order to present evidence of your bona fide relationship. It is imperative that a person does not enter into a fraudulent marriage. A fraudulent marriage will penalize both the petitioner (US Citizen spouse) and the beneficiary (the person obtaining the benefits) and might even result in criminal charges including prison time. While Immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it is entered in good faith.

In order to file for a marriage petition, one should have a valid marriage. A valid marriage is one which is recognized in the State in which it takes place. For example, if Ram gets married to Anita in Nevada and moves to California, this marriage will be recognized by the Immigration. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and thus Immigration will also not recognize this marriage. This is very important because you might not know this fact until you file your petitions with the Immigration. Also if the marriage takes place, for instance, in Fiji, Immigration will recognize the marriage as long as the marriage is recognized in Fiji. Note that a proxy marriage will not be recognized. A proxy marriage is one where the bride and groom did not meet on the wedding day. The exception to this rule is if the marriage was consummated after the proxy marriage.

Once married, the paperwork can either be processed inside United States, if the beneficiary (the one obtaining the greencard) is in the United States or it can be processed overseas through the US consulates. In the case of processing the cases overseas, one can opt for a K3 visa to reduce the waiting time. Also if no marriage has yet taken place one can also bring his or her fiancé on a K1 visa. Such visas are only available for US citizen petitioners. On the other hand, in order for the marriage case to be processed in the United States, (a process called adjustment of status), the beneficiary has to have entered the United States legally albeit for one day. This means the person should have entered the US on a valid visa. Those who entered by crossing the border are out of luck unless they benefit from a provision under INA 245(i). This provision will require if any kind of petition was filed in the beneficiary’s favor on or before April 30, 2001. There are many requirements to prove that you benefit from this provision of the law. You need to speak to an experienced attorney about your particular case. Also if you have overstayed on your visa, you definitely need to speak to an immigration attorney before you proceed with any kind of case.

During the adjustment of status process, you should not leave the United States unless you file and get an approved reentry/parole permit. You should know that a parole or reentry permit is not a guarantee of entry in the United States. It only allows you to board a plane and arrive at the port of entry in the US where an immigration officer will determine whether to allow you inside the US or not. If you have overstayed for more than 180 days on your visa before applying for a greencard, you should definitely not leave the United States. Indeed you will be subject to a 3 years bar. This bar will prevent the person not only from getting back into the US but also in obtaining permanent residence. At that point only a waiver can help you. It is important to know that waivers are not easy to obtain. If you overstayed more than 365 days before applying, again you should not leave because this time you will be subject to a 10 years bar. The same rule as the 3 years bar will apply except the bar is for 10 years now and the waiver is a lot harder to obtain.

Once you file for your marriage petition, you will be called for fingerprint and for an interview within 3 to 8 months, provided the papers are properly filed. You are supposed to attend this interview with your spouse and proofs that your marriage is bona fide (good faith). At this point, it is highly advisable to have an attorney present with you during such interviews. Indeed a licensed attorney will be allowed to sit with you at the interview. If the adjudicating officer is satisfied with the interview, and the security check is finalized; he or she will tell you that he or she will issue an answer soon. You might get an answer the next week that your case is approved and a letter welcoming you to the US as permanent resident.

On the other hand, if the Immigration gets proof or admission that the case is fraudulent, you might be arrested on the spot. At this point you are highly advised to remain silent until your attorney is present. In another case scenario, if the officer is not satisfied, you might be called for another interview or they might deny your case. Technically, if it is denied they will give you one month before referring the case to the Immigration Judge. This will allow your attorney to possibly file for a motion to reopen the case. If this fails then the case will be argued in immigration court. The immigration judge will review the case de novo (again) and make a determination. This means you have to prove your case or the government has to prove that your marriage was not bona fide. Again, it is highly recommended to hire an experienced attorney to move forward in such cases.

If the case is approved, the beneficiary will be issued a conditional residence if at the time the green card is issued the marriage was less than two years. You should verify if you have a conditional residence. Usually a conditional residence green card will have an expiry date of 2 years as from the date of issue. You will need to remove that conditional residence status as from 90 days from the second anniversary of the issue of the greencard by filing a Form I-751. It is imperative to file the removal otherwise your status will be terminated. Usually if you are still married to you US citizen spouse, you will file a joint petition to remove such conditions. If you can prove your marriage was bona fide, you will be given a permanent residence card for 10 years approximately 6 months after filing the Form I-751. If the Immigration has reason to suspect foul play, they will launch an investigation and then might even call you and your spouse for a removal of conditional residence interview. If they are satisfied, they will grant you unconditional permanent residence. If not they will refer the case to an immigration judge.

The question is what happens if there is a separation or divorce before or during the 90 days preceding the anniversary of the expiry of the conditional greencard. The following are few potential scenarios.

Divorce finalized prior to filing the removal of conditional residence.

In this case, one needs to file the removal of conditional residence waiver (Form I-751) even if the marriage has not reached two years. You will be required to prove that your marriage was entered in good faith and the marriage was not terminated through your fault. The process will follow typically the same path as when you file the case jointly with your wife; Two years anniversary of the conditional green card has come to term and the divorce is not finalized. In this case, you will need to get the divorce finalized as soon as possible so that you can file the Form I-751 waiver; and You were able to file your joint petition of removal of conditional residence and during this time your marriage is facing troubles and you separate and intent to divorce your spouse. You need to inform the USCIS and wait for the final divorce decree and file a Form I-751 again.

There are numerous other permutations of situations regarding the removal of conditional residence namely abusive US citizen spouses, or hardship situations. You should speak to your attorney regarding your particular case.

There are other provisions under the law to protect beneficiaries namely in case of abuse by US citizen spouses. In case, one is abused by his/her citizen spouse, one will be eligible to file for VAWA (Violence against Women Act) protection. Note that VAWA can be used in favor of man also. There are also situations where the US citizen spouse dies before the case is approved.

Because VAWA and other exceptional cases are very unique cases. We will try to cover them in our next article.

And remember, it is highly recommended to speak to an experience licensed attorney before filing any kind of immigration case.

The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state.

By: Shah Peerally
Law Offices of Shah Peerally 4510 Peralta Blvd, Ste 23 Fremont CA 94536 Phone: (510) 742 5887 http://www.peerallylaw.com Email: shah@peerallylaw.com

Shah Peerally is the managing attorney for the Law Offices of Shah Peerally located in Fremont, California. Prior to his entrance into Immigration law practice, Shah worked in litigation and business law for Mc Nichols Randick O’Dea & Tooliatos LLP in Pleasanton, California. Later, Shah joined the Law Offices of Virender Goswami as a supervising attorney in business and employment immigration. Shah was also attorney of counsel for the Immigration law offices of Minter and Ahmad in Fremont, California.

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Recent changes in Immigration policies make mandatory detention much more likely for Visa holders and Lawful Permanent Residents.

If you have been recently arrested or have been released from prison after October 8, 1998, you may be a candidate for mandatory detention. Immigration and Customs Enforcement (ICE) may arrest and hold you in an Immigration Detention Facility based on the criminal charge. This may happen even if you served a minimal amount of time in jail. The key element is that the criminal charge, arrest, or release from custody have occurred after October 8, 1998.

On March 21, 2007, in Matter of KOTLIAR-, 24 I&N Dec. 124 (BIA 2007), the Board of Immigration Appeals ruled on the topic of mandatory detention during a bond re-determination hearing. The Board of Immigration Appeals (BIA) is the governmental body having jurisdiction over appeals submitted by detainees and respondents who have been ordered deported by an Immigration Judge during removal proceedings.

According to the BIA, its ruling is consistent with the concern from Congress that criminal aliens will continue to commit crimes and not appear at the removal hearings. It is important to note that the alien is able to request release and bond in front of an Immigration Judge where the grounds for detention are not included in the charging document from the Department of Homeland Security.

Based on the BIA’s recent ruling, an alien who has been apprehended from home while on probation for a criminal conviction is subject to mandatory detention. The individual is to be mandatorily detained by ICE regardless of the reason for the criminal custody or arrest. He or she can be subject to mandatory detention as long as the arrest or the release occurred after October 8, 1998. This recent ruling came about as a result of an appeal from an individual who entered the United States as a visitor and stayed for longer than authorized, who had been convicted of several crimes. According to the BIA’s ruling, individuals having served time in jail or on probation are subject to mandatory detention. Even an individual who has been arrested before a conviction is given may be subject to mandatory detention for immigration purposes. It is important to note that even if the arrest was based on a crime that is not the grounds for your charges of deportation, you may still be subject to mandatory detention.

An individual can appeal a final order of deportation by the Immigration Judge to the BIA. In some cases, the individual can even appeal to the Circuit Court having jurisdiction over the case. In general, the BIA is the last governmental body to review the individual’s case. Hence, the decision by the BIA is the final say on whether the individual appealing is able to stay in the United States or is to be deported.

By: Sonia Munoz
If you have been arrested or released from probation, parole, or incarceration recently, you might be subject to mandatory detention. Feel free to contact an attorney at Immigration Legal Experts, Inc. at 1-866-482-VISA (8472) to find out more information. Initial Legal Consultation is FREE. Also visit Immigration Legal Experts, Inc. on the web.

Authored by Sonia M. Munoz, Esq. Attorney and President of Immigration Legal Experts, Inc. For her CV and more information about her previous experience, seminars, and other published articles visit http://www.immigrationlegalexperts.com.

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