Articles Posted in Denials

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In this video, attorney Jacob Sapochnick discusses different avenues that an employer may wish to take if their employee’s PERM labor certification has been denied by the U.S. Department of Labor (DOL). For those who are unaware, the PERM labor certification process allows a U.S. employer to sponsor a foreign worker’s green card so that they can live and work permanently in the United States. PERM is the first step the U.S. employer must take before they can file the foreign worker’s immigration petition with the U.S. Citizenship and Immigration Services (USCIS) also known as Form I-140 Immigrant Petition for Alien Worker.

But what happens when the employer’s PERM labor certification application is denied by the Department of Labor? We discuss all that and more right here on this video.

Overview

The denial of a PERM labor certification application can be frustrating because employers and foreign workers invest a great deal of time and expense to ensure that the process goes smoothly.

There are generally three steps involved in the process of obtaining permanent residence through an employer:

  1. The U.S. employer must file a labor certification application with the U.S. Department of Labor. This requires the employer to prove that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job being offered in the area of intended employment. This is proven by going through a recruitment process where the employer places multiple advertisements for the position. The employer must also show that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  2. Once a permanent labor certification application has been approved by the DOL, the employer will need to file Form I-140 Immigrant Petition for Alien Worker with USCIS on behalf of the foreign worker.
  3. Upon approval of Form I-140, the applicant can proceed with applying for adjustment of status to permanent residence with USCIS. In some instances, the I-140 and I-485 can be filed concurrently.

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In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: Can undocumented immigrants open their own business in the United States?

If you would like to know more about this topic, please keep on watching!

Overview

This is one of the most widely misunderstood topics of discussion in immigration. The answer is yes, any person whether documented or undocumented can start a business in the United States.

Individuals can form a Limited Liability Company (LLC) or any other corporate structure irrespective of their legal status in the United States. This is because the LLC or corporate entity is a separate entity from the individual. The LLC can obtain an Employer Identification Number, also known as an EIN from the Internal Revenue Service (IRS) for the purpose of tax administration. To obtain an EIN, the principal business must be located in the United States or U.S. territories, and the member applying for the EIN must have a valid Taxpayer Identification Number, such as a Social Security Number (SSN), Individual Taxpayer Identification Number (ITIN), or EIN.

However, if you are employed by the LLC or corporate entity without lawful authorization to work in the United States, you will be in violation of the law, however the business registration in and of itself is legal.

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In this video, attorney Jacob Sapochnick addresses a very important topic, what can you do if your N-400 application for naturalization has been denied?

To help you navigate this situation, in this video we discuss all the options you should consider moving forward. If you would like to know more about this important topic, please keep on watching.

Did you know? Over the last few months, more and more N-400 naturalization applicants have been wrongfully denied following the N-400 naturalization interview. It is important to understand the common pitfalls of N-400 naturalization applicants so you can avoid them in the future and ensure your success.

Overview

What are some common reasons for N-400 denials?

There are numerous different reasons why N-400 applications for naturalization may be denied.

Some denials occur simply because the applicant provided incomplete or deficient information requested on the N-400 application for naturalization. For instance, the Form N-400 requires applicants to provide detailed information about all places of residence, work, and school history, during the last 5 years.

Failure to provide complete and accurate information in these sections can be a cause for denial following the N-400 interview.

As an example, John Doe came to our office seeking consultation after the denial of his N-400 application. Upon closer review of his denial notice, we discovered that John failed to provide his complete residential history during the past 5 years. The immigration officer that interviewed John knew about the deficiencies in John’s residential history, because residential addresses that he previously provided to the U.S. Citizenship and Immigration Services (USCIS) on his green card applications did not appear on his N-400 application. Rather than give John the opportunity to cure these deficiencies, the immigration officer denied the N-400 application and applied immigration bars for fraud and misrepresentation. The N-400 was denied based on John’s failure to establish good moral character (a requirement of the N-400 application) due to the omissions in his application.

Other denials may occur based on an immigration officer’s review of the applicant’s past immigration and criminal history, leading to a denial.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: How long does it take to get U.S. Citizenship after sending your application to USCIS? What are the actual steps involved in applying for citizenship?

Keep on watching to find out more.

Overview

How long does it take to get U.S. Citizenship these days?

The current processing time from start to finish to obtain U.S. Citizenship is over 12 months. The process begins with the filing of the N-400 Application for Naturalization with the United States Citizenship and Immigration Services (USCIS) along with all of the necessary supporting documentation and ends with the mailing of the Oath Ceremony notice that contains the date, time, and location where the applicant must appear for his or her naturalization ceremony, following approval of the application at the in-person interview which takes place at a USCIS field office.

Why the delays?

As our readers will know, the Coronavirus pandemic and ongoing USCIS backlogs have greatly increased the processing times for nearly all types of applications filed with the agency, and the N-400 Application for Naturalization is no exception. The lengthy processing time also largely depends on the number of applications being scheduled for interviews at your local USCIS office. Certain local offices are experiencing much higher workloads than others, which can result in longer processing times in comparison to field offices in smaller cities. Unfortunately, these backlogs are set to continue through at least 2023.

What are the steps to apply for U.S. Citizenship?

STEP ONE: Filing and preparing the Form N-400 Application for Naturalization

The first step involved in the naturalization process is filing and preparing Form N-400, the Application for Naturalization, and including all the necessary supporting documentation with the application. This form is taking about 1 year to be processed by USCIS.

TIP: If you are a self-filer, be sure to carefully read the N-400 form instructions and ensure that you have provided accurate responses and completed the form correctly. Failure to ensure the proper completion of the form can result in delays, or serious immigration consequences. In addition, self-filers must ensure that they have sent the appropriate filing fees and have mailed the application to the proper address.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the top five reasons K-1 visas are denied and what you can do to avoid these common pitfalls.

Want to know more? Keep on watching for more information

Overview

Imagine this, you have just finished your K-1 visa interview and the Consular officer hands you a letter stating your K-1 visa has been refused. You leave the interview asking yourself, what do I do now?

The good news is you’re not alone. In the majority of cases, applicants may cure any defects in their applications and continue with visa processing. However, it is important to know the application process ahead of time to avoid finding yourself in this situation.

Top Reasons for K-1 Visa Denial  

#1: Not having enough evidence of bona fide relationship

The most common reason for K-1 visa denial is where the couple does not provide enough evidence of a bona fide relationship.

A bona fide relationship is one that was entered in good faith and not with an intention to deceive. A fiancé visa applicant does not have a bona fide marriage if he or she entered the marriage solely to receive an immigration benefit from USCIS. Immigration officers are trained to identify fraudulent or “sham” marriages where either party or both parties have entered the marriage simply for the green card applicant to obtain his or her permanent residence in the United States, without any sincere intention to live together in the same household or form a marital bond.  Immigration officers search for inconsistencies in any answers provided by either party to the marriage, and carefully scrutinize supporting documentation provided by the couple with the initial I-129F filing.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers a hot topic that has been frequently asked by our followers: what are the top reasons for CR/IR-1 immigrant visa denials and what can you do about it.

Want to know more? Keep on watching for more information.

Overview

What is a CR-1/IR-1 visa?

A CR-1 or IR-1 visa is an immigrant visa for a spouse of a United States Citizen who is residing abroad. The term “CR” in CR-1 stands for “conditional resident” and is issued to foreign spouses who have been married for less than 2 years. By contrast the term “IR” in IR-1 stands for “immediate relative” and is issued to foreign spouses who have been married for more than 2 years. Those who receive a CR-1 visa will eventually receive a 2-year conditional green card after entering the United States, while those who receive an IR-1 visa will receive a 10-year green card (without condition).

The first step to apply for a CR-1/IR-1 visa is for the U.S. Citizen spouse to file a Petition for Alien Relative, Form I-130, with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign spouse. This petition initiates the immigration process to the United States. Once Form I-130 is approved by USCIS, the petition is transferred to the National Visa Center for pre-processing. At the National Visa Center stage, the applicant must complete the immigrant visa application and provide civil documentation. After sending all required documents to the National Visa Center, the NVC will forward the case to the U.S. Embassy near the foreign spouse and the applicant will wait to be scheduled for an Embassy interview. The Embassy interview is often a make it or break moment for couples who must prove that they have a “bona fide” marriage to be approved for their visa.

What are the top reasons for CR/IR-1 denials?

#1 Not meeting the income requirement for the affidavit of support

The number one reason for spousal visa denials is failing to meet the income requirement for the affidavit of support. As part of the spousal visa application process, the U.S. Citizen spouse must sign the I-864 Affidavit of Support, which is a legally enforceable contract between the U.S. Citizen and the government wherein the U.S. Citizen must sign under penalty of perjury that they have the adequate means to financial support the alien and the alien will not rely on the U.S. government for financial support.

What is the income requirement?

The minimum amount that the U.S. Citizen must make depends on his or her household size. In general, petitioners must make at least 125% of the federal poverty guidelines. However, exceptions exist for petitioners who are on active duty in the U.S. armed forces. Petitioners who do not satisfy the income requirement must apply with a joint sponsor, who must also sign a separate I-864 Affidavit of Support and provide evidence of financial ability. If the petitioner and joint sponsor do not qualify, the spousal visa application will be denied.

To prevent this situation from happening petitioners must make sure well in advance of filing the I-130 application, that they either meet the income requirement, or that they can obtain a joint sponsor who is willing and able to sign the affidavit of support and provide the necessary documentation.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a frequently asked question: can someone who is in the process of getting divorced overseas re-marry in the United States before that divorce is final?

Overview:

In many foreign countries the process of getting divorced is a very long and tedious process with many divorces taking many years to come to a final conclusion.

Many clients are left wondering whether they can lawfully re-marry in the United States while their divorce process is pending overseas, so that they can move on with their lives and apply for adjustment of status based on their marriage in the United States.

Unfortunately, you may not lawfully re-marry in the United States until all prior marriages have been terminated. A prior marriage is terminated when divorce proceedings come to a conclusion. A prior marriage is terminated by a government order or decree of dissolution of marriage issued by the appropriate authority in the country where your divorce proceedings took place. If you have not received a final order or decree of dissolution from such an authority, your prior marriage has not been terminated.

Filing a petition for adjustment of status while you remain married to someone else, even in a foreign country, carries with it very serious legal consequences.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss whether you can file an application to extend your stay on a tourist visa if you have overstayed.

Disclaimer: We do not recommend overstaying your duration of stay on any visa classification, because serious immigration consequences could result. However, this post discusses the options you may have, if you find yourself in the precarious situation where you have already overstayed, and you have a good faith reason for having overstayed.

Overview:

Typically a person is given up to a 6-month period to remain in the United States on a tourist visa. At the end of those 6 months, the foreign national must depart the United States. The question is: are there any special circumstances in which a person may be allowed to extend their stay, where they have overstayed their visa?

In this case, the person stayed past the 6-month period of time allowed in the United States, and did not depart the United States. However, the person had a good faith reason for remaining in the United States. Toward the end of their stay, the individual had just given birth in the United States, and unfortunately some medical complications occurred that kept the individual in the United States past the 6-months authorized by their tourist visa. Because of these complications, the individual could not fly outside of the United States.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we have some bad news for H1B visa holders, some very very alarming statistics. If you want to know what they are watch this video.

H1B Visas and Rate of Denials

Based on a recent statistic, between 2015 through 2019 there has been a significant increase in H1B visa denials. H1B visa denials have quadrupled in denial rates.

Similarly, the volume of requests for evidence issued to H1B petitioners have increased by 60 percent.

The H-1B season for fiscal year 2021 will bring some important changes. Firstly, USCIS has imposed a new online electronic registration requirement for H1B petitioners to streamline the H1B lottery process.

When we see a quadrupling in the rate of H1B visas denied for strong H1B petitions, it is apparent that the government is trying to send a message, which is that they want to limit the amount of people who can actually file for H1B visas. In the requests for evidence we have received for H1B extensions and transfers, we see a trend in which USCIS is using the most narrow interpretation of what a “specialty occupation,” is which by definition limits the pool of candidates eligible to receive an H1B visa.

We are seeing almost automatic denials for our marketing and business positions because USCIS is being so restrictive in how they interpret and define a “specialty occupation.” USCIS is taking the position that marketing and business positions are not “specialty occupations.”

USCIS has time and time again refused to accept the complexity of these positions, legal arguments in support of a finding that these positions are in fact specialty occupations, and ignored expert opinions supporting such positions as “specialty occupations.”

From what we have seen in our own filings and from conversations we have had with other attorneys and law offices, it is becoming increasingly difficult to get H1B visas approved for positions and occupations are were normally approved without difficulty in the past.

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Welcome back to Immigration Lawyer Blog, where we discuss all things immigration. In this post, we discuss the status of the Presidential Proclamation signed by President Trump on October 4, 2019, that sought to suspend the entry of immigrants who would financially burden the United States health care system.

Firstly, let’s discuss what this Presidential Proclamation is about.

Effective November 3rd, the Presidential Proclamation required persons seeking to immigrate to the United States to provide proof, within 30 days of their entry to the United States, of approved health care coverage, or adequate financial resources to pay for reasonably foreseeable medical costs.

Immigrant applicants who failed to provide such evidence would be considered a financial burden on the U.S. healthcare system and would be inadmissible to the United States.

More on the Proclamation here.

What’s happened?

In response to a lawsuit filed by seven U.S. Citizens and a nonprofit organization, on Sunday November 2, 2019, U.S. District Judge Michael Simon issued a temporary restraining order blocking the President’s Proclamation from going into effect as planned on November 3rd.  Judge Simon’s order applies nationwide meaning that the government cannot enforce any parts of the proclamation until the court reaches a decision on the merits of the case.

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