Brian Lerner

Opening up a New Office? Get an L-1

Question: Can I use an office based in my home and or garage for the L-1?

Answer: No. You must have an 'actual office'. The reality might be that you can run your business from a computer or your garage. However, for Immigration purposes, there must be a brick and mortar office and you must be paying rent.

Question: Do I have to sign a lease? What if I don’t get the L-1 or it is not approved?

Answer: You can do a lease where deposit made and you can make it contingent upon issuance of the visa. Therefore, if denied, you would get the deposit back and you would not have to pay months of rent without ever having the visa.

However, there is the issue of whether or not the landlord would accept this type of lease which is separate and apart from what is acceptable to US Immigration.

Question: Is it difficult to get an L-1 for a new office?

Answer: Yes, the reality is it is somewhat difficult. However, it can certainly be done. If you happen to have the option, however, to get an office that has more than one year of doing business, it would be easier to get approved.

Question: Can you give some pointers to help on the duties?

Answer: Well, one thing you must do is to distinguish between functional manager vs. area manager. Be sure to make clear if you are ‘managing’ the new office whether you are managing a ‘function’ of the office such as ‘all accounting’ or managing all the people in some fashion.

Question: Do I need a business plan?

Answer: Yes, normally you will need a 5 year business plan. However, if the new office is basically a branch of a successful business outside the U.S., you may not need to do the business plan, especially if the same type of business.

Question: What if I have no help in the U.S. to help get it started? How can I get things setup?

Answer: You can come on B1 to get the L-1 started.

Question: When should I say the new company will begin?

Answer: Do not pick a date certain as you will lose valuable time if it is approved afterwards. Pick when the petition is approved.

Question: What if I have had business operations for more than one year?

Answer: Then, you do not file the ‘new office L-1A’. You file a normal L-1A. Be sure to show how foreign company has control over the employee here (the manager or executive) and to show what staff in U.S. will support manager/executive in the U.S.. There is a good case called Matter of ZA -2013 in which you can use OVERSEES staff in determining whether position is managerial in the U.S.


Are you an Athlete?

Q: I am a body builder and just won a big amateur contest. Can I come and work in the U.S. on some type of visa?

A: Yes, there is what is known as the P Visa. The P-1A is for a Person who performs as an athlete, individually or as part of a group or team that is “internationally recognized”(P-1A), or a person who performs with or is an integral or essential part of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time (P-1B), and in the case of the performer, has had a sustained and substantial relationship with the group (ordinarily) over a period of at least one year.

P-1s have been expanded to include certain minor leaguers, amateurs or professionals: (1) an athlete, whether or not professional, who performs at an internationally recognized level of performance; (2) an amateur athlete or coach of sports teams in the U.S. that are members of a foreign league or association if (i) the foreign league or association is the highest level of amateur performance of that sport in that country; (ii) participation renders the athlete ineligible for U.S. scholarships under NCAA rules; and (iii) a significant number of the players in the league are drafted into major league teams or minor teams affiliated with them; or (3) a professional or amateur ice skater who performs individually or as part of a group theatrical production.

You should get an agent to sponsor you and one that can get a significant amount of events. We can try to get up to 5 years on the P1.

Question: What if I also want to apply for the Green Card?

Answer: The P Visa is one of the few visas that allows dual intent. This means that immigration cannot deny your case because you intend on getting residency.

Question: Who should I get to sponsor me?

Answer: It can actually be an agent. It does not have to be a company. An agent can book you for competitions, tours and appearances all over the country for the next 5 years. This is one of the very few visas that will allow a 5 year span of authorization to work under it. In fact, once the 5 years is up, you can then renew again for another 5 years.

Question: I have heard about the O-1 Visa. Should I try for that as well?

Answer: In actuality, the O-1 is much more difficult to obtain and the burden of proof is higher. As an athlete, the P Visa would be better. It has a longer authorization period, easier burden to prove, dual intent and the other factors I described already. Keep in mind that it is never easy to get a P Visa. However, as a talented athlete, the doors are open for you to take advantage of this particular visa.


The New H.R. 3003. What does it mean?

Judiciary Chairman Goodlatte stated that the bills will “enhance public safety,” they will do the just the opposite: undermine public safety and make it even harder for local law enforcement to protect their residents and communities. In addition, the bills which were made public less than a week before the vote and completely bypassed theJudiciary Committee, include provisions that will result in violations of due process and the Fourth and Tenth Amendments to the Constitution. This does seem to be the status-quo now when Bills are presented at the 11th hour for voting without oversight, review or comment.

At a time when over 9 out 10 Americans support immigration reform and legalization of the

undocumented, Republican leadership is asking the House to vote on enforcement-only bills that will lead to more apprehensions, deportations, and prosecutions of thousands of immigrants and their families who have strong ties to the United States. Instead of criminalizing and
scapegoating immigrants, Congress should be offering workable reforms that will strengthen our
economy and our country.

H.R. 3003 would undermine public safety and interfere with local policing. H.R. 3003 would amend 8 U.S.C. §1373 to prevent states or localities from establishing laws or policies that prohibit or “in any way” restrict compliance with or cooperation with federal immigration enforcement. The bill dramatically expands 8 U.S.C. §1373 which is more narrowly written and prohibits local law enforcement from restricting the sharing and exchange of\ information with federal authorities, but only with respect to an individual’s citizenship or immigration status.

Rather than empowering localities, the extremely broad wording of H.R. 3003 would strip localities of the ability to enact common-sense crime prevention policies that ensure victims of crime will seek protection and report crimes. The bill would also undermine public safety by prohibiting DHS from honoring criminal warrants of communities deemed “sanctuary cities” if the individual being sought by local law enforcement has a final order of removal.

In other words, people will become afraid to report crimes. While it might be reported that crime is going down, that is not the case. It would be because people are afraid if they report the crimes that they will be detained and deported. Thus, criminals will get away with committing crimes (particularly domestic violence) and the victim will remain quiet and in fear of calling the police.

Under H.R. 3003, localities that fail to comply with federal immigration efforts are penalized with the denial of federal funding for critical law enforcement, national security, drug treatment, and crime victim initiatives, including the State Criminal Alien Assistance Program (SCAAP), Community Oriented Policing Services (COPS), and Byrne JAG programs that provide hundreds of millions of dollars to localities nationwide.

Unfortunately, it is as though the administration believes there is nobody else out there committing crimes other than immigrants. It would be in the best interest of the foreign national to see if you qualify for a Motion to Reopen or other form of relief before these types of laws take effect.


Get Ready! Prosecutorial discretions are being revoked.

Question: I was in Immigration Court about 2 years ago and had no relief. However, I did not have any crimes either and my attorney made a motion for prosecutorial discretion. However, last week, I was arrested for DUI. I did not even have to plea as the case was dismissed. There was no evidence and I have no conviction. However, the arrest prompted ICE to revoke my Prosecutorial Discretion. What happens now?

Answer: Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that ICE has to discontinue working on a deportation case. ICE can exercise its PD in many different ways. For example, ICE can join you in asking an immigration judge to close your case. Prosecutorial discretion used to be under Obama one of the most important aspects of Immigration Law. Immigration Prosecutors can choose not to prosecute a crime for which someone is arrested. They can decide to pursue less serious charges. They can basically decide not to issue the Notice to Appear and begin Removal Proceedings.

However, under Trump, this has changed. Prosecutorial Discretion is all but dead. It is very rarely being issued. There are, of course, situations where it is still merited, but nothing like before. Additionally, ICE is revoking grants of PD left and right. Therefore, it becomes necessary for you to know your rights.

1. You do not have to sign a voluntary deportation;
2. You can fight your case in front of the Immigration Judge; and
3. You can still get detained;
4. You can make a motion to get bonded out.

Therefore, you will note that ICE officials in many cases will not tell you the truth and will lie about what you can and cannot do. You MUST know that you can fight your case and the fact that the Prosecutorial Discretion was denied and/or revoked is no reason to give up. It just means you must fight your case now.

Question: But how can I fight? What should I do?

Answer: First, get a qualified Immigration Attorney. Each case is different. This means that depending on your situation, the particular forms of relief will be different. We might be able to apply for Cancellation of Removal or Adjustment of Status, or Waivers of a variety of different kinds, or Asylum, Withholding of Removal, Convention Against Torture or a number of other forms of relief. What is important is that you can fight your case. Simply because Trump has decided to issue orders revoking Prosecutorial Discretion does not mean your path has ended.

Immigration Attorneys across the country are fighting every order that Trump makes. He cannot simply make the Immigration and Nationality Act disappear, or the Code of Federal Regulations, or the Policy Memos or the Foreign Affairs Manual. We are a country of Laws and one man, even if President of the U.S., cannot simply dictate and make all of that disappear.

We are fighting one case at a time and ultimately, we will prevail and the tides will turn. Trump is already seeing through his Muslim Ban, that he cannot simply sign a paper and think it becomes law.


Can I get back after a deportation order?

Question: I committed a crime and was deported from the United States about 3 years ago. I’m wondering if I can get back to the United States? There are those that are encouraging me to come illegally to the US as I will never be able to return to the United States.
Answer: There are several parts to this question. First of all, it is possible to get back legally to the United States. However, there are several different factors here. First of all, I would need to know about what type of crime you committed. Some crimes have waivers. Some do not. Some are aggravated felonies. Each particular kind of crime gives me information as to how I can help you and what can be done. For example, if it were classified as an aggravated felon, I might determine whether you had a jury trial or whether you plead guilty or nolo contendre. 
I might then determine whether you were properly advised of your immigration consequences and whether you knowingly made a guilty plea or not. We might be able to then do a motion to vacate or reduce the judgement so that you are not considered to be an aggravated felon. Afterwards, I might be able to make the necessary motion to reopen or various other motions to vacate a prior immigration or deportation order (since the crime leading to the deportation might have disappeared.)
Alternatively, I might determine you are not an aggravated felon, and therefore, do not need to do criminal relief and/or vacate the crime. Rather, I would determine if the particular crime allowed for a Waiver of that crime and if you had a qualifying relative. If so, then we could get the Waiver prepared along with the various petitions to get you back to the US. 
Finally, I might determine that you are not inadmissible on the crime and no Waiver is needed. 
Question: How about the prior deportation order? What can be done?
Answer: Again, some of the actual procedures will differ depending on the actual case and what needs to be done. However, there have what is known as a Permission for Re-entry to the US This is an entire application upon which will have a legal brief, declaration, affidavit and other types of evidence. If approved, then the deportation bar will basically disappear. Normally, you would be given a 10 year bar to not being able to return to the US. This has nothing to do with the crime or Waivers. Rather, it has to do with the actual deportation order itself. Thus, if the Permission to Reapply is granted, the 10 year deportation bar is removed and you are permitted to come legally back to the US (with the proper petitions) even though you had a deportation order.
Thus, there is no reason to await for 10 years before you start the process. In fact, you can actually start the Permission to Reenter a day after you are deported. You can even start it while you are still in the country with a deportation order. 
Question: So, after that I can just return?
Answer: Still yet, it is not that easy. Once the Permission to Reenter is made and approved and any Waivers of Inadmissibility are done and completed, there must be a visa petition upon which you qualify to come back to the U.S. Thus, in most cases, there are three separate petitions needed in order to eventually come back. However, if done properly, all three could take as little as about 1 ½ years instead of the 10 or 20 years.

Provisional Waiver available even with Deportation Order

Question: I have heard that the provisional waivers have expanded. I have a prior deportation order and have been so afraid to have my spouse petition me because I thought I could not file a provisional waiver inside the US. I thought I would have to leave the US and ‘hope’ that the waiver was approved. Is it true that this has changed?

Answer: Yes, the applicability of the provisional waiver has been expanded. Remember, that the provisional waiver would apply only in the case where you normally would not have been inadmissible on any other grounds other than unlawful presence in the US. It allows you to file here in the US while you are here in the US. If successful, then it would mean you would actually only have to leave under normal circumstances to the US Consulate for only a few days and then you would return as a lawful permanent resident.

The Department of homeland security (or DHS) had adopted changes discussed in the proposed rule. The new modifications include: (1) Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications or provisional waivers with USCIS.

(2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility.

(3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling.

(4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved,
an Application for Permission to Reapply for Admission into the United States After Deportation or Removal Form I–212 and

(5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

So it is a very positive development. If you have a prior deportation order and have filed the Permission to Re-enter AND it is approved, then you will be eligible to file the Provisional Waiver. This development is surprising considering the increased efforts of ICE to deport as many people as it can and to restrict opportunities to people who are not here in the US legally.

Question: I’m not 100% sure if I qualify and/or if I have a deportation order. What should I do?

Answer: It would be very important for you to obtain the advice from a qualified immigration attorney as to whether you have or do not have a deportation order and whether you should or should not file a Permission to Re-enter and then at what point you would become eligible to file for the provisional waiver.

Question: How long will this take?

Answer: The Permission to Re-enter will take about 1 year and the Provisional Waiver will take another 6 months.


Returning to the US after months of being outside

Question: I have been outside the US for 8 months and have friends who went back to the U.SA. and were forced to give up their Green Card and then enter on a B2 Visitor Visa. Will that happen to me?

Answer: If there is an absence of intent to permanently reside in US coupled with objective circumstances, lawful permanent residents (LPRs) can lose their status even if they visit the US often. An LPR may have multiple residences, but US residence must be the permanent one. In other words, LPR status may be lost if abandoned. Possession of reentry permit does not prevent DHS from inquiring as to whether the holder abandoned his residency; it simply prevents the DHS from relying solely on the duration of the absence as a basis to determine abandonment. Further, a reentry permit does not bar DHS from refusing admission to the holder and placing him in removal proceedings.

Question: This sounds scary. What do I do?

Answer: First of all, while it is possible to lose your residency, you cannot be forced to sign the paper giving up your right to be a lawful permanent resident. Thus, the first item you want to do is to NOT SIGN ANYTHING. It is your right to not sign and they cannot force you to sign. Additionally, DHS (the officer at the port of entry) cannot force you to take a B2 Visitor Visa instead. You must request to see an Immigration Judge. This will make is so that you will be placed into proceedings to see the Immigration Judge to argue whether or not your residency has been abandoned or not.

Question: How can I protect myself?

Answer: First, if you will be gone for a while from the US, you must keep your assets in the US. Keep a lease if you can. Pay US taxes. Hold furniture in the US. Keep the bank account, etc.

Question: Is there a maximum time that I cannot come back with my Green Card?

Answer: Yes. It will allow you entry to the U.S. up to 354 days after you have left. Thus, do not leave more than 1 year at a time.

Question: Is all lost if I’m gone more than 1 year?

Answer: No. You will be able to file an Application at the Consulate to show you did not abandon your residency in the US and to explain the reasons for the lengthy departure (i.e., taking care of your sick mother, testifying in some case, working on estate matters, etc.) and if granted, you will be able to get paroled into the US.

Question: What is the burden of proof? Meaning how much do I have to prove to win?

Answer: Once a colorable claim to LPR status is made, the burden is on DHS to prove abandonment by clear, unequivocal and convincing evidence. Thus, you must just show a reasonable claim that you did not abandon your residency and then DHS has a much higher burden of showing in fact you did abandon your residency. In fact, clear, unequivocal and convincing is an extremely high burden for them to meet. This makes winning on your part easier.


ICE Coming to Courts. What can you do?

Question: I have a roommate who left an abusive relationship. She actually filed a Temporary Restraining Order against this person. Court was yesterday. She went to Court to testify in front of the Judge so that he would rule in her favor and her abuser would not come within 100 yards from her and hurt her again. She won the temporary restraining order, but when she was leaving the Courthouse, she was apprehended by ICE. She is now in detention. Can ICE do this?

Answer: Yes, if the person they apprehend is inside the U.S. and here illegally, they can be apprehended. It is unfortunate and chilling that ICE has decided to do this for people at Court and coming out of Court. What message will this send? It will send the message that people who are illegal and who are victims of crime, that they should not go and get justice against those persons who committed the crime on them. In this exact case upon which you have asked the question, she probably would have kept taking the abuse from the person committing domestic violence on her and she would have lived in fear every day that he is around the corner and will abuse her more.

It also emboldens the accuser and the perpetrator. They will know the fear that the person who is not here legally has and will use that against them. They will commit their crimes on the victims and then tell them if they are reported to the police that ICE will be called and they will be deported.

ICE’s decision to do this is deplorable. They have no sense of how this will affect victims. You can already see statistics. People here illegally are reporting much less crimes. This is not because there are less crimes, but because they are afraid of the police, of ICE and of being deported. In fact, there are probably more crimes actually being committed.

Question: My friend said that ICE wanted to force her to sign her deportation papers. She felt compelled to do this. However, she luckily read something that she has a right not to sign. What can be done?

Answer: You are correct. She did the right thing by not signing. Now, she will have an opportunity to fight her case in Immigration Court. She might qualify for VAWA, or the U Visa, or the T Visa or possibly the S Visa. There are other avenues as well.

Question: Could she have resisted the ICE Official?

Answer: Most likely not. However, she had and has a right to not speak to the officer and not to answer questions. She should simply say “I am choosing not to speak to you as that is my legal right and I am going to have my Immigration Attorney help me.”

Question: She is in detention now. Can she get out?

Answer: Yes, a Motion for a Bond Redetermination can be made. It will show she is not a flight risk and not a danger to the community. If granted, then she will be released during the pendency of the deportation hearings. I certainly understand the reluctance to report crimes. However, the way to help yourself is to see an Immigration /Deportation Attorney who can see if and what you might qualify for under the U.S. Immigration Laws. ICE only wants to deport you. If you will see an Immigration Attorney in sufficient time, then you might very well be able to be helped and to later obtain legal status.


Will I be deported if I lose my asylum case?

Question: I will be applying for asylum. I’m not exactly sure of the process, but if I lose, will I be deported?

Answer: Clients who have arrived in the United States and who have not been issued a Notice to Appear (NTA) will apply for asylum "affirmatively," meaning that they will be interviewed at an asylum office, and an asylum officer (AO) will decide their case. Such clients are sometimes called "applicants." The application is made by mail to a U.S. Citizenship and Immigration Services (USCIS) Service Center, and includes Form I-589, Application for Asylum and for Withholding of Removal. The place where the client lives determines which service center should receive the package.

The client can bring a friend or family member to the interview to act as an interpreter, if needed, as well as an attorney. If interpretation is used, the AO will use a phone monitor to ensure that the interpreter is providing accurate service. All family members who are included in the application should appear at the interview. However, the AO typically does not need to speak to anyone other than the principal applicant.

An asylum interview is non-adversarial, meaning that no government attorney is there to oppose the case. The AO is neutral. In practice, the purpose of an asylum interview is for the AO to assess the client's credibility. At the conclusion of the interview, the client's attorney may summarize key facts and legal issues for the AO to consider.

At some asylum offices, the client is notified that he or she should return to the asylum office to receive the AO's decision. In n many cases a decision is mailed instead. Note that it will take in some places 2 to 4 years to actually receive the interview.

The AO can make one of three decisions about an asylum claim. First, the AO may grant the case. The client will be mailed a letter outlining his or her rights and benefits as an asylee, a stamped I-94 card showing asylee status, and an Employment Authorization Document (EAD).

Second, the AO may deny the case. This can only happen if the client is in lawful status, such as F-1 student. An AO can only deny the case if the client has a legal status to fall back on.

Before denying the case, the AO will usually send a Notice of Intent to Deny (NOID) that outlines his or her concerns, such as inconsistencies in the client's testimony. The client will have an opportunity to respond and provide additional evidence. If the AO is still unconvinced that the case has merit, he or she will deny it. As with approvals, the client will get written notice of the denial.

Question: If it is denied, what happens?

Answer: Clients who have been issued a NTA are in removal proceedings. Clients may receive an NTA because they filed affirmatively but were referred to court by an AO. Also, clients who have passed a Credible Fear Interview similarly go before an Immigration Judge. This process will take 1 to 2 years depending on the backlog of the Court.

Question: What if I lose at the Immigration Court?

Answer: You will then have 30 days in which to appeal to the Board of Immigration Appeals. This is still an administrative body. It will take about 1-2 years to receive a decision by the BIA.

Question: What happens if I lose at the BIA?

Answer: This will be your first opportunity to appeal via what is known as a Petition for Review. This is when it will actually go to the Circuit Courts of Appeal and be heard by three Justices. This usually takes another year.

Question: What if I will lose at the Circuit Court of Appeal?

Answer: This means that you can do a Petition for Rehearing En Banc. This is when it still stays at the Circuit Court of Appeal, but is transferred to the entire panel of Justices, not just 3. This takes about another 6 months.

Question: What if I lose the Petition for Rehearing?

Answer: You would then do a Writ of Certiorari to the U.S. Supreme Court. To get to this point, many times, it will take 8 to 10 years.


Let’s play Alphabet soup to Get a Business Visa

A business visa attorney can let you know all types of visas that you might be able to apply for under U.S. Immigration law. Depending on your situation, the type of visa will differ. For example, a business visa attorney might tell you about the H-1B. For example, the H-1B is for people who have college degrees. The business visa attorney will explain that the H-1B is referred to as the specialty occupation visa. The job itself must reflect the reality of the position requiring the use of the college degree. The business visa attorney would explain that you could not be a cashier with an electrical engineering degree and still expect to get the H-1B. There are only 65,000 H-1B Visas per year. The business visa attorney may elaborate that those are usually gone in the first week that the door opens in which to apply for the H-1B (which is April 3.) It is time to apply right now, so don’t wait.

However, there are many type of business visas that do not require a college degree. For example, there is the O-1 Visa. The business visa attorney explains that the O-1 is for people who are extraordinary in whatever it is that they do. There are several requirements for the O-1 as would be elaborated by the business visa attorney. You must be able to establish that you have extraordinary ability in your field. Essentially, the O-1A visa is for people who are recognized as being at the very top of their field and who are coming to the United States to continue work in that field. To establish eligibility for an O-1A visa you must either have received a major, internationally recognized award, similar to a Nobel Prize, or submit evidence that affirmatively answers at least 3 of the 8 categories as put forth and explained by the business visa attorney. Those areas are as follows: Have you received a lesser nationally or internationally recognized prize or award for excellence in the field of endeavor? Are you a member of any associations which require outstanding achievements of their members as judged by recognized national or international experts?

Is there published material in professional or major trade publications or major media about you which relates to your work in the field? Other questions/categories as explained by a business visa attorney are as follows: Have you participated on a panel or individually as a judge of the work of others in the same or in an allied field of specialization? Have you made original scientific, scholarly or business-related contributions of major significance? Have you authored scholarly articles in professional journals or other major media? Have you been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation? Have you or will you command a high salary or other remuneration for your services?

Yet other types of business visas involve investments. For example, there are the E-2 and the L-1. These are visas for persons who want to either start their own business in the U.S., or in the alternative, to open up a branch office in the U.S. Thus, the business visa attorney will explain that the E-2 will require about $100,000 investment, but you can run your own business and come to the United States to make your dream come true. The L-1 requires much less investment, but would require that you have very good records for the company you are running in your home country. The typical business visa attorney will know that many countries do not keep good records and are running businesses without invoices and contracts and tax records. These types of businesses are not very good businesses for the L-1. Another type of related investment visa is the E-1 and the E-1 deals with trading with your home country. Therefore, if the business does at least 50% of its work trading with the home country, then the E-1 might be the best way to proceed forward.

The B1 can be used if you want to come into the United States to negotiate contracts for your company in your home country, or if you have to do temporary training or attend conferences. These are very short duration visas and can be quickly issued.

Another type of business visa if your from Canada or Mexico is the TN Visa. The TN is somewhat related to the H-1B, except there are no limitations on the amount of TN’s and some TN’s do not require a college degree. In any event, if you want to get a business visa, be sure that you find an experienced business visa attorney.

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