Prepare Now for Upcoming Changes to ID Requirements for Domestic Air Travel

After the Sept. 11 terrorist attacks, Congress passed the REAL ID Act to establish minimum security standards for state-issued IDs and driver’s licenses. The provisions of this act have been phased in over time but will be fully enforced beginning Oct. 1, 2020.

For New York residents, this means that starting October 1, 2020, a REAL ID or higher form of identification will be required to fly domestically. Suitable identification includes an enhanced license or passport. Residents enrolled in travel programs, including TSA Precheck, NEXIS, Global Entry and SENTRI do not need a REAL ID.

For New York residents who only hold a standard driver’s license, now is the time to act to ensure the ability to fly domestically and enter secure federal buildings and military bases once this change takes effect. An application for a REAL ID or enhanced license requires an in-person visit to a local Department of Motor Vehicles Office. For individuals who hold a valid New York driver’s license with a current address that is not up for renewal, a REAL ID can be obtained with the current license, proof of Social Security number (i.e. Social Security car or W-2), and two proofs of state residency (i.e. utility bill, bank statement, etc.).

For individuals with a New York drivers license up for renewal, an additional form of ID will also be required. Appropriate additional identification includes a passport, birth certificate, naturalization certificate, permanent resident, or employment authorization certificate.

While standard drivers licenses will continue to be issued by New York State, individuals who plan to travel by air should consider upgrading to a REAL ID or enhanced license before October 1, 2020. Residents are encouraged to visit the NYS DMV website to schedule an appointment and confirm what documentation is required ahead of time.

If you have questions on U.S. immigration, be sure to contact our office to schedule a consultation with one of our attorneys today!

Family 2A Category Visas to Become Current July 1, 2019

The U.S. State Department has announced that starting July 1, 2019, the filing for 2A spouses and unmarried children of lawful permanent residents will be current. This process has had a two-year backlog for many years.

This announcement came from Charlie Oppenheim of the State Department at the Immigration Conference of the Federal Bar Association in Austin, Texas on May 17, 2019.

Green card holders will be able to petition for their spouses and/or children starting on July 1, 2019. For green card holders whose spouse and/or children are lawfully present in the U.S., they should be ready to file their I-485 adjustment of status application on July 1. If a green card holder has yet to file an I-130 for his or her spouse and/or children, they can do so now or file the I-130 together with the I-485 application on July 1. 

For spouses and/or children who are in the U.S. but do not have legal status, if they qualify under second 245i, they can adjust their status in the U.S. This also applies to spouses and/or children who are in removal proceedings and can request that the immigration judge expedite their next hearing so that they can file for adjustment of status in July 2019. 

If a green card holder has a spouse and/or children living abroad and their I-130 application has been approved, they should submit all required paperwork to the National Visa Center immediately so that an immigration visa interview can be scheduled. 

If you have questions on this, be sure to contact Berardi Immigration Law to set up a consultation with one of our attorneys today!

Court Enjoins USCIS from Enforcement of Unlawful Presence Memo Impacting Students and Exchange Visitors

A Federal Judge has enjoined USCIS from enforcing a policy memorandum issued in August 2018 relative to the accrual of unlawful presence for nonimmigrant student or exchange visitors. The ruling found that the policy memorandum amounts to a “legislative rule” in violation of the Administrative Procedures Act because the government did not publish in the Federal Register or allow for a period of public comment on the rule. 

A person can accumulate unlawful presence by (1) entering the U.S. without inspection; (2) overstaying their period of lawful status in the U.S.; or (3) violating their immigration status. Previously, for students and exchange visitors, accrual of unlawful presence began only when DHS or an immigration judge made an out-of-status determination and notified the individual of the same.

Pursuant to the USCIS policy update, a determination of retroactive violation is made and can result in the denial of a green card application and bar the individual from entry for a period of three years (if the violation occurred before August 9, 2019) or 10 years (if after August 9, 2019). The Court’s decision in Guilford College v. USCIS prohibits the USCIS from enforcing the policy outlined in its August 2018 memorandum. 

If you have a question on this, please contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!

The E-2 Visa and Real Property Investments

The E-2 investor visa was created to allow entrepreneurs from countries which maintain a trade and commerce treaty with the United States to establish new businesses in the U.S. through investment. Though E-2 visas are less often granted for investments in real property, there is a possibility that this type of investment may qualify for an E-2 visa if certain conditions are met. Here, we elaborate on these conditions.

Before qualifying for an E-2 visa using a real property investment, a real property investor must first qualify for the E-2 visa through three requirements. Firstly, the entrepreneur must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States. The investment cannot be a relatively small amount of capital in a marginal enterprise initiated solely for the purpose of earning a living. The business must also be active, meaning that an investment that is earned through minimal activity and with little daily effort or upkeep, such as investments in stocks, would not qualify. Secondly, the investor must be seeking entry into the United States solely to develop and direct the enterprise. And thirdly, the investor must intend to depart from the United States upon the expiration or termination of E-2 status.

Once these general E-2 requirements have been satisfied, a real property investor must apply two additional tests to determine if an investment in real property will qualify for an E-2 visa. These tests are the “active” test and the “marginality” test. In order to satisfy the “active” requirement the investor must be actively involved in the business, directing and developing it on a regular basis. Under the marginality requirement, the investor must also show that his or her investment will benefit the economy of the U.S. That is, it must provide more income than it takes to support the investor and his or her family.

If the scope of your real estate business simply involves owning one rental property or holding title to real property without more, it is unlikely that your activities will qualify for an E-2 investor visa because the investment will not pass the “active” test. It would be deemed to be a passive investment that does not involve “directing” and “developing” the investment. However, if your real property business involves purchasing, selling, renting and renovating real estate, or managing multiple rental properties on a consistent basis, you are more likely to qualify, especially if the business involves ongoing activity during the entire year.

If you have any further questions or concerns about the E-2 visa, please call Berardi Immigration Law to set up a consultation with one of our immigration attorneys today!

The ‘Buy American and Hire American’ Executive Order Two Years Later

On April 18, 2017, President Donald Trump signed an Executive Order titled “Buy American and Hire American.” The President insisted that the Executive Order would favor American workers more so than the policies already in place. He also intended, among other things, for the “Buy American and Hire American” Executive Order to address his concerns with the H-1B visa program. The President thought that the H-1B lottery system should be modified so that H-1B visas would only go to the most skilled and highest-paid applicants. He also insisted that the H-1B system should not be allowed to replace American workers with foreign workers. The new Executive Order was meant to address these flaws in the H-1B program.

Technically, the executive order did not create any laws or modify any that already existed. Instead, the Order set in place a policy for the maximization of the production, and sale of goods, products and materials produced in the United States. With an eye toward fulfilling the mandate of the “Buy American and Hire American” Executive Order, United States Citizenship and Immigration Services (USCIS) has applied new rules, directives and adjustments to safeguard the jobs of American workers and to avert abuses of the H-1B program.

More specifically, USCIS has made changes in three categories: (1) policies and regulations protecting U.S. workers, (2) fraud detection and prevention in employment-based visa programs, and (3) transparency of employment-based visa programs. Under the first category, USCIS changed the order of selection of H-1B petitions under the cap. Now, USCIS first selects H-1B petitions, including those eligible for the advanced degree exemption, in the general lottery. Then, from the remaining number of advanced degree petitions, USCIS selects a number expected to reach the advanced degree exemption cap. This change ensures that individuals with a master’s degree or higher have a better chance of being selected in the H-1B lottery.

In January of 2019, the President signed another executive order intending to expand the “Buy American and Hire American” stratagem. This second executive order works from the first to try to impact economic production in a way that benefits United States workers and businesses and may have a further impact on immigration. If you have applied for an H-1B visa, of if you plan on applying for one soon, and you have questions or concerns about how the President’s Executive Orders may have impacted your ability to obtain an H-1B visa, please do not hesitate to call Berardi Immigration to set up a consultation with one of our experienced and knowledgeable attorneys today! 

Restrictions on Travel to Cuba

United States citizens remain restricted from traveling to Cuba. For instance, traveling to Cuba solely for tourism or vacations remains strictly prohibited. However, there are exceptions in the government regulations. The Office of Foreign Assets Control (OFAC) allows travel to Cuba via either a general license or a specific license. In order to travel to Cuba on a general license, a U.S. citizen must fall into one of 12 categories of authorized travel enumerated in 31 CFR § 515.560. The categories include such activities as family visits, educational activities religious activities, and “Support for the Cuban People.” “Support for the Cuban People” is one of the most familiar and applicable general license categories for travel to Cuba.

Travel to Cuba for the purpose of “Support for the Cuban People” is described and clarified by 31 CFR § 515.574, which requires that three criteria are met. First, the activities in Cuba must be carried out by human rights organizations, organizations designed to promote a transition to democracy, or organizations intending to strengthen civil society in Cuba. Second, each traveler must be engaged in activities that enhance contact with Cubans, support civil society or promote Cuban independence. Finally, the traveler’s schedule must not include more free time or recreation than would be expected of a full-time schedule. 

Fortunately, none of the 12 general license categories require any sort of official approval or filing of a permit application with the OFAC. The licensing process is one of self-certification. A traveler simply creates a statement of the category that applies; this could be an affidavit or just a letter. When an activity does not meet the criteria for a general license, a traveler can apply for a specific license from OFAC by submitting an application and awaiting approval from OFAC.

If a traveler’s activities conform to the regulatory requirements prescribed by 31 CFR § 515.574, the traveler should not have any issues returning to the United States after traveling to Cuba. Though the Trump administration has recently unveiled sanctions against Cuba, these sanctions will not impact the “Support for the Cuban People” program. 

Not all countries operate under the same restraints. Canada does not impose similar travel restrictions on travel to Cuba, for instance. Canadians need not worry about categories of authorized travel or meeting the correct criteria for the purpose of their trip. They are free to travel to Cuba with little restraint.

If you are considering a trip to Cuba and you have questions or concerns about the process, please do not hesitate to contact Berardi Immigration Law today to schedule a consultation with one of our experienced and knowledgeable attorneys!

The Modernization of the InfoPass System

In 2004, United States Citizenship and Immigration Services (USCIS) implemented InfoPass, a free online service providing applicants with the option to schedule an appointment with a USCIS immigration officer through the USCIS website. Since then, InfoPass has been modified, updated and refreshed many times. More recently, USCIS developed a pilot program to replace InfoPass entirely. 

The pilot program, titled the Information Services Modernization Program, was introduced for testing in the Spring of 2018. USCIS was pleased with the results of the program and it became implemented nationwide in November of 2018. The Information Services Modernization Program will ultimately replace the traditional InfoPass system entirely by September of 2019.

Based on surveys and other data, USCIS determined that most people who made in-person information service appointments through InfoPass could have received the same information by calling the USCIS Contact Center or checking the USCIS website. The new system is intended to streamline information services by centralizing case status inquiries and information resources in the USCIS Contact Center. There, applicants can receive immediate assistance through online messaging and live phone-based support. By ending InfoPass and redirecting applicants to the Contact Center, USCIS hopes to focus more support on those applicants facing emergency situations or those applicants who need services that can only be provided in person. USCIS also hopes that by reducing in-person appointments, resources can be better allocated toward processing and adjudicating applications, areas in which USCIS suffers from a significant backlog.

For those who still require in-person assistance, appointments can still be made through the Contact Center. USCIS is hoping to make further improvements to the Call Center in the future, such as shortening call back times and providing call backs from an officer in your zip code. Presently, the applicant could be speaking to an officer anywhere in the country. However, these goals are presently aspirational. 

If you have any further questions or concerns about the replacement of the InfoPass system, please do not hesitate to contact Berardi Immigration Law to set up a consultation with one of our experienced and knowledgeable immigration attorneys today!