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Supreme Court Allows Public Charge Rule to Take Effect

Posted January 27, 2020Kristen KellarArticles

On January 27, 2020, the Supreme Court voted 5-4 to allow the Department of Homeland Security’s public charge regulation to go into effect immediately while the appeals process plays out in the lower courts. The decision applies to all states except Illinois, which is currently covered by a separate injunction that was not at issue before the Supreme Court.

The public charge regulation was set to take effect in October 2019 before being delayed by a preliminary injunction issued by the Federal District Court for the Southern District of New York. The regulation expands the groups of applicants subject to the public charge review to include not only adjustment of status applicants, but also applicants applying for changes and extensions of status. In addition, it also allows officers to assess whether an adjustment of status applicant is likely to become a public charge in the future.

For more information on the rule, please see our recent blog post on the topic.

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Pre-Immigration Tax Planning for the Intersection of Tax and Immigration Law

Posted January 23, 2020Cheryl KilbornArticles, Entrepreneurship, Green Card, Visa Bulletin

Tax and immigration law share intersecting objectives in that both seek to define rights and obligations based on a person’s status in the U.S. (e.g. non-resident alien, green card holder, U.S. citizen). The clearest example of this is the significant event of becoming a legal permanent resident (green card holder). The act of becoming a legal permanent resident (even conditional) triggers taxation on worldwide income and transfer tax on worldwide assets for U.S. tax purposes. This obligation begins immediately upon entering the U.S. and receiving a green card.

There is minimal tax difference between how green card holders and U.S. citizens are treated in that green card holders possess the same tax responsibilities as U.S. citizens. Green card holders do however, miss out on some citizen exclusive benefits. For example, the inability to take advantage of the foreign earned income exclusion on tax returns (while the IRS permits green card holders to take this exclusion, doing so can severely undercut a claim to maintaining legal permanent resident status).

Because taxation is an area where prospective green card recipients can save a lot of money, pre-immigration tax planning is well advised. Some strategies to minimizing income tax include engaging in certain transactions prior to moving to the U.S.; accelerating gains and deferring losses; offshore trusts; and accelerating gifts (to reduce the overall taxable estate). As such, future green card holders would be wise to take the time to meet with an experienced adviser who is familiar with U.S. tax law and can provide advice on what it means to become a U.S. taxpayer and how best protect their wealth.

Meltzer Hellrung is a boutique law firm that provides pragmatic business immigration management support, including long-term strategies for navigating the US immigration system and responsive day-to-day legal services. 

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Spending Bills FY 2020

Posted January 9, 2020Lana LeeArticles
 

Recently, Congress has passed two bills that fund the federal government, including the Departments of State, Homeland Security, and Labor, among other federal agencies. These departments and agencies will be funded through Fiscal Year 2020, which ends on September 30, 2020.
 
Fortunately, these bills reauthorize some important immigration operations, such as E-Verify, the Conrad 30 Waiver Program (for foreign medical graduates who work in underserved areas and special non-minister religious worker program) and EB-5 Regional Center program. Specifically for EB-5, this reauthorization through September 30, 2020 is aligned with the recent USCIS regulation that increases the minimum EB-5 investment levels and gives USCIS sole authority over the designation of Targeted Employment Areas (TEAs).
 
The passage of the spending bills mean that there will be no interruption of federal immigration operations at this time.
 
If you have any concerns regarding any information stated above, please contact your attorney at Meltzer Hellrung LLC.

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USCIS expands guidance regarding good moral character requirement for naturalization applicants

Posted December 20, 2019Articles

 

USCIS has expanded its guidance regarding unlawful acts that may prevent an applicant for naturalization from meeting the good moral character requirement. The good moral character standard was unclear as to what type of  unlawful activity would prevent an applicant from meeting this standard. USCIS considers an act unlawful if it violates criminal or civil law. Under the Immigration and Nationality Act, an applicant for naturalization must establish that they have been and continue to be people of good moral character during the statutory period before filing for naturalization and up until they take the Oath of Allegiance. USCIS officers will continue to perform case-by-case analysis to determine whether an act is unlawful and adversely reflects on an applicant’s good moral character. There are extenuating circumstances that can overcome the good moral character standard, but it must pertain to the unlawful act and must precede or be contemporaneous with the commission of the unlawful act.  

The list below are USCIS examples of unlawful acts that bar good moral character:

  • bail jumping;
  • bank fraud;
  • conspiracy to distribute a controlled substance;
  • failure to file or pay taxes;
  • false claim to U.S. citizenship;
  • falsification of records;
  • forgery uttering;
  • insurance fraud;
  • obstruction of justice;
  • sexual assault;
  • Social Security fraud;
  • unlawful harassment;
  • unlawful registration to vote;
  • unlawful voting; and
  • violation of a U.S. embargo

In addition to the unlawful acts listed above, USCIS has updated the policy guidance on how two or more driving under the influence (DUI) convictions could also affect good moral character determination. If you have any concerns or questions about your ability to naturalize, please contact Meltzer Hellrung for assistance.

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State Department Removes Stricter Guidance Update on Blanket L Visa Petitions

Posted November 20, 2019Kyle RobyArticles

In late October, the U.S. State Department updated its standard of review guidelines to consular officers within the Foreign Affairs Manual (FAM), instructing officers to require Blanket L visa applicants to show their eligibility for the visa through “clear and convincing evidence”. Officers were further instructed to deny applications where questions about the applicant’s eligibility could not be resolved quickly or easily during the interview.

As of November 14, 2019, the State Department has withdrawn these updated instructions on stricter guidance in the FAM, reverting the guidelines back to the previous review standard that officers only grant Blanket L petitions that are “clearly approvable.”

Blanket L petitions are commonly used by multinational organizations for the purpose of transferring large numbers of employees from international offices to U.S. offices, granted the organization meets the eligibility criteria for Blanket L certification. Eligible employees of these organizations may apply for either an L-1A intracompany managerial/executive transferee or L-1B specialized knowledge visa pursuant to the approved Blanket L petition, eliminating the need for an individual petition filing with the U.S. Citizenship & Immigration Service (USCIS).

Blanket L petitions at U.S. Consulates have historically been subject to stricter standards of review by consular officers, resulting in increased denials over the past several years. The now rescinded guidance was expected to encourage officers to scrutinize these types of petitions even more closely, likely resulting in further increased denial rates. It is unclear if the State Department will try to adjust the review guidelines again in the future.

Employers and their foreign national employees who are applying for the L-1 visa pursuant to a Blanket L petition at a U.S. Consulate should continue to ensure that they are well prepared for the interview prior to their visa appointment. It is strongly recommended for applicants to review and be prepared to describe their work experience, skills, and job duties in clear and concise detail to minimize risk of denial.

Meltzer Hellrung LLC will continue to monitor the above guidance in order to advise clients on best practices for these types of applications.

For more information on the Blanket L petition, U.S. Consular interviews, or visa interview preparation for foreign national employees, please contact your designated Meltzer Hellrung attorney.

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