Immigration Visa Attorney Blog

The purpose of this blog is to give you a simplified overview of the E visa program. The E visa route is often overlooked when evaluating options of bringing adult family members with an ability to invest funds in the US. Since the E visa normally is not approved for those with pending family immigrant petitions, it may be advisable in some situations to consult with an attorney before rushing and filing certain family petitions with substantial backlog.

E visa comes in two varieties: the E-1 Treaty Trader and the E-2 Treaty Investor. To qualify for any type of E visa, the investor or trader must be a national of a country that maintains a treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty with the United States. The U.S. Department of State keeps a list of the qualifying countries and two of the most notoriously backlogged countries, Mexico and the Philippines, are currently on the list. Though the E visa is not typically considered a path to permanent residence, E visa holders can apply for an indefinite number of visa renewals. Notably, despite the significant amounts of trade and investment between the United States and China, Chinese nationals are not eligible for an E visa. This is due to the fact that there is no formal treaty between the United States and China recognizing the trading and investment relationship.

The E-1 visa is available for foreign nationals of treaty countries whose intent in the United States is to carry on substantial trade between the United States and the treaty country. Moreover, the E-2 visa is available for foreign nationals of treaty countries whose intent in the United States is to develop and direct the operations of an enterprise, in which they have invested, or are in the process of investing, a substantial amount of capital. Both the amount of trade and investment must be "substantial," however; the definition of substantial does not provide clear guidance for E applicants. Specifically, the definition of substantial trade is "a sizable and continuing volume," whereas a substantial investment is one that is sufficient to ensure the successful operation of the enterprise.

As there is no statutory threshold for the amount of trade or investment that qualifies as substantial, it may be difficult to ascertain whether an applicant clearly qualifies without the help of an experienced immigration attorney. It is highly recommended that E applicants consult with an experienced immigration attorney regarding their application prior to submission. An experienced attorney should be able to advise on the likelihood of success and help develop the business concept in a fashion that meets E visa regulations and policies Regardless of the vague qualification standards, one advantage of the E visa is the fact that the U.S. Consulate or Embassy can usually process applications quickly and the applicant can receive a decision within weeks or months.

Not all issues related to the Child Status Protection Act are settled law. There remain several unanswered questions. An example is the Matter of Xiuyi WANG. Many families in Michigan and throughout the US await some positive news on a class action law suite related to CSPA. In the Matter of Xiuyi WANG, the Board of Immigration Appeals found that certain automatic conversion/retention of priority date provisions of the Child Status Protection Act (CSPA) do not apply under certain circumstances. In that case the court ruled that foreign national children who age out of eligibility for an immigrant visa as a derivative beneficiary in the fourth preference category will not retain their priority date under the CSPA when they are the beneficiary of a second preference petition later filed later by a different petitioner. Astonishingly, this decision -- which punishes children for aging and only serves to divide families -- has been upheld by the U.S. District Court.

Specifically, in the Matter of Wang, the foreign national's child was only 10 years old when the original petition was filed naming her as a derivative beneficiary. However, an immigrant visa number did not become available until she was 22 years old and no longer eligible for derivative status. The father, upon receiving his green card, filed a second preference category petition on behalf of the daughter, who is now above 21 and is no longer a child, and requested the earlier priority date of the previous petition be assigned to her. The United States Citizenship and Immigration Services (USCIS) refused to apply the earlier priority date.

The decision in the Matter of Wang was appealed to the United States District Court in the Central District of California, Southern Division, but the Court granted the government's motion for summary judgment. Encouragingly, the Court had certified a class on July 16, 2009 comprised of "[a]liens who became lawful permanent residents as primary beneficiaries of third- and fourth-preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom Defendants have not granted automatic conversion or the retention of priority dates pursuant to § 203(h)(3)." Nonetheless, on November 10, 2009, the Court held the decision in Matter of Wang was entitled to deference and, therefore, no issues of material fact existed for trial. The case has been appealed to the Ninth Circuit Court of Appeals.

Allowing decisions such as this to remain "good law" is only to enforce the separation of families and frustrate the entire purpose of the CSPA. Notably, the BIA's decision in Matter of Wang discussed the legislative history of the CSPA and recognized that "[t]here was repeated discussion in the House, both before and after the Senate amendment, of the intention to allow for retention of child status 'without displacing others who have been waiting patiently in other visa categories.'" The child beneficiary in Matter of Wang had done nothing but wait patiently for 12 years for an immigrant visa to become available, only to be sent to the "back of the line" due to no fault of her own. We can only hope that the Ninth Circuit Court of Appeals will uphold the underlying purpose of the CSPA, find in favor of keeping families together, and not punish innocent children for the USCIS' processing delays and the unavoidable passage of time. Stay tuned.

In many parts of the US including Columbus, Ohio and Michigan, Refugees and Asylees struggle to find a new life and to forget their troubled past. The Child Status Protection Act (CSPA) offers much needed assistance to them. As we discussed in prior blogs, the Child Status Protection Act (CSPA) prevents certain foreign national children from losing their preferential immigration benefits due to "aging out" at 21 years old. The asylum and refugee provisions of the CSPA are especially vital in helping to keep families together. Sections 3 and 4 of the CSPA provide special assistance to the unmarried children of asylees and refugees whether accompanying or following-to-join their parent. The CSPA allows the children of asylees and refugees to maintain their child status and, thus, their eligibility for derivative status even after reaching the age of 21 years old.

For the most part, so long as the child of the asylee or refugee was under the age of 21 when their parent applied for asylum or refugee status, they will be eligible for derivative benefits even after attaining the age of 21 years old. To qualify as a child included on an asylum or refugee application, the aging out child must be listed on Form I-589 or Form I-590, respectively, prior to a final determination on the application. Indeed, a parent can add a child of any age to their asylum application before it is adjudicated, and the child will be entitled to derivative benefits so long as the application was originally filed while the child was under 21 years of age.

The asylum and refugee provisions of the Child Status Protection ACT (CSPA), also apply to children whose parents did not include them on their asylum or refugee application. If the asylee or refugee did not include their child on their application, the aging out child may obtain derivative status if their parent filed Form I-730 within two years of being granted asylum or refugee status. If Form I-730 was pending at the time the CSPA was enacted, a child who aged out would still be eligible for derivative status if the I-730 petition was originally filed before the child turned 21 years old. The USCIS even considers an approved I-730 application to be pending if the U.S. Embassy or Consulate has not issued travel documents. Asylees and refugees, by definition, have experienced extremely difficult circumstances in their lifetime, but they can be encouraged by the fact that laws exist to help keep their family together.

Many of our Family Immigration clients in Columbus, Ohio and in Michigan and elsewhere share their frustration that notwithstanding near a decade passage of the Child Status Protection ACT (CSPA), USCIS continues to struggle with its interpretation. I explained in my prior blog, The Child Status Protection Act (CSPA), enacted on August 6, 2002, contains remedies for foreign nationals claiming a "child" status who are in jeopardy of losing their immigration benefits due to aging out. Though the Child Status Protection Act (CSPA), was enacted in 2002, the United States Citizenship and Immigration Services (USCIS) were still changing its interpretation of the CSPA's provisions until 2008. In particular, foreign nationals who had an approved immigrant visa petition prior to the CSPA's inception, but had not filed a green card application before August 6, 2002 were initially not eligible for the CSPA's benefits.

In guidance issued in February 2003 and August 2004, the USCIS reiterated their initial position: that the provisions of the CSPA took effect on August 6, 2002 and were not retroactive. Thus, benefits would only be available to foreign nationals who aged out on or after August 6, 2002. The only exceptions for foreign nationals who aged out prior to August 6, 2002 were for those who had a visa petition either pending on August 6, 2002 or had an approved petition with a green card application pending on August 6, 2002. Interestingly, pending for the purposes of visa petitions includes appeals or motions to reopen filed with the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO) on or before August 6, 2002.

The USCIS' policy shift was not voluntary, rather mandatory in light of the BIA's decision in In Re Rodolfo Avila-Perez in February 2007, holding that it is not mandatory for a foreign national to have an application for adjustment of status or immigrant visa pending on August 6, 2002 to be eligible for CSPA benefits. Accordingly, the USCIS revised its previous position regarding the retroactivity of the CSPA provisions. Currently, qualifying foreign nationals who aged out prior to the CSPA's implementation can file a new green card application to take advantage of the CSPA. Additionally, foreign nationals whose green card applications were denied due to age can file motions to reopen or reconsider. It took the USCIS a long time to settle on the appropriate interpretation of the CSPA, but fortunately the correct conclusion was reached: that the benefits of the CSPA should have retroactive application to certain foreign nationals.

From Columbus, Ohio and Troy Michigan and beyond, The Child Status Protection Act (CSPA) gives children of immigrants badly needed protection form government slow immigration processing. The Child Status Protection Act (CSPA) was first enacted on August 6, 2002 for the purpose of allowing certain children of lawful permanent residents or naturalized U.S. citizens to maintain their "child" status through 21 years of age. Increasingly, processing delays at the United States Citizenship and Immigration Services (USCIS) were causing children to lose their eligibility for certain visa classifications due to "aging out" or turning 21 years old.

In general, the Child Status Protection Act (CSPA) provides that the age of a foreign national claiming a child classification will be frozen upon the occurrence of various events, depending upon the type of petition pending. For example, if an immediate relative petition was originally filed, the CSPA considers the foreign national's age to be fixed as of the date Form I-130 Petition for Alien Relative was filed. If Form I-130 Petition for Alien Relative was filed while the foreign national was 20 years old, the foreign national's age for visa classification purposes would be frozen at 20 years old until a visa number became available.

The CSPA contains special provisions for children whose lawful permanent resident parents naturalize, children self-petitioning under The Violence Against Woman Act (VAWA), and married children whose marriage is subsequently terminated. Additionally, the most recent guidance from the USCIS allows retroactive application of CSPA benefits to foreign nationals who had an approved immigrant visa petition prior to the establishment of the CSPA, but had not yet applied for a green card by the date the CSPA was enacted. This development in CSPA interpretation allows many foreign nationals who never filed a green card application, or had their application denied due to age, to refile.

The CSPA provisions are anything but easy to comprehend. Originally, the USCIS even had some difficulty in determining how the provisions of the CSPA should be interpreted and, for many years, was continually issuing revised guidance memoranda. There has been well documented cases of improper denials by USCIS since 2002. Notwithstanding the confusion, it is in the best interests of any foreign national in danger of aging out to fully understand and avail themselves of the benefits of the CSPA. I will provide more details on this in follow up blogs.