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San Jose Immigration Law Blog

How does asylum work in the United States?

With thousands of men, women and children headed toward our Southern border, many will be seeking asylum in the United States. This is an entirely legal process, and the U.S. pledged in the 1951 UN Convention Relating to the Status of Refugees to accept eligible asylum seekers and a share of qualifying refugees. That treaty, commonly called the 1951 Refugee Convention, also prohibits the U.S. from returning refugees and asylum seekers to the countries they fled from.

The United States grants asylum only to people who are seeking protection due to a credible fear of persecution due to:

  • Race
  • Nationality
  • Religion
  • Political opinions
  • Membership in a particular social group

Tweak to H-1B lottery rule could further benefit advanced degrees

H-1B visas are nonimmigrant visas that allow people from three categories to live and work in the U.S. for between three and six years:

Specialty occupations: Immigrants with a U.S. bachelor's degree, its equivalent, or a higher degree working in jobs requiring such a degree that cannot be filled by U.S. personnel. This category is commonly used for engineers and other STEM professionals who are in high demand.

Colleges challenge new 'unlawful presence' policy for students

Coming to the U.S. on a student or exchange visa comes with the responsibility to maintain your immigration status while you complete your program. You can violate your immigration status in several ways, but the primary ones include overstaying your visa, reducing your academic load below full time and exceeding your work authorization.

If you violate your immigration status, the U.S. Citizenship and Immigration Services (USCIS) may determine that your continued presence in the U.S. is unlawful. This could lead to deportation and removal and, if you remain out of status for 180 days, a 3- or 10-year reentry bar.

Decision nears on H-4 visa employment authorization

The Trump administration has telegraphed since early 2017 its intention to remove a path for early employment eligibility for spouses of H-1B visa holders.

This move took a step forward in late October with the Notice of Proposed Rulemaking published in the administration's Fall Unified Agenda for the Department of Homeland Security (DHS).

Getting a green card through investing in a commercial enterprise

International investors seeking to move permanently to the U.S. may be able to do so through the EB-5 visa program. This program, which was created in 1990 to help stimulate the U.S. economy, gives investors a conditional green card if they contribute between $500,000 and $1,000,000 toward a new commercial enterprise which creates or preserves 10 qualifying full-time jobs.

How does the program work?

DHS issues final rule on what aid counts as a 'public charge'

Recently, the Department of Homeland Security (DHS) announced a proposal that would have impacted many immigrants seeking admission to the U.S., wishing to extend a nonimmigrant stay or applying for green cards. Immigrants engaging in those immigration activities are required to prove that they won't be an economic burden on American society -- a "public charge," as the law terms it. The DHS proposal sought to clarify which public benefits could count against immigrants trying to prove they won't be a public charge.

The final version of the rule is not as strict as the proposal we discussed before on this blog. The proposal included certain health insurance subsidies and participation in CHIP (the Children's Health Insurance Program) as evidence that the immigrant is a public charge. Those were removed from the final rule.

Alison Yew selected to 2018 Northern California Super Lawyers list

Alison Yew
Rated by Super Lawyers

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San Jose immigration law attorney Alison Yew has been selected to the 2018 Northern California Super Lawyers list, indicating that she is among the Top 5 percent of immigration attorneys in Northern California. Each year, the Super Lawyers list is developed as a result of peer nominations and independent research.

Super Lawyers, part of Thomson Reuters, is a rating service that helps potential clients select attorneys in more than 70 legal practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are determined using a patented, multiphase selection process that includes a statewide survey of attorneys, an independent research evaluation of the candidates, and reviews by peers in each candidate's practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Federal court: Grants can't be withheld from sanctuary cities

The Trump administration's plan to withhold criminal justice grants from sanctuary jurisdictions has now been permanently blocked. Federal judges in Chicago, Philadelphia and now San Francisco have ruled that the Justice Department cannot place immigration-related conditions on the grants. Moreover, they struck down as unconstitutional a longstanding immigration law, Section 1373 of Title * of the U.S. Code, that appeared to support the administration's position.

"In agreement with every court that has looked at these issues, I find that: the challenged conditions violate the separation of powers; Section 1373 is unconstitutional; the Attorney General exceeds the Spending Power in violation of the United States Constitution by imposing the challenged conditions," wrote the judge in San Francisco.

DHS: Accepting public benefits will now weigh against immigrants

If you're applying for a green card, you probably already know that you have to prove you won't be an economic burden -- a "public charge" on American society. Recently, however, the Department of Homeland Security (DHS) announced a new proposal that could make it harder for some immigrants to prove that.

Under the proposal, accepting certain public benefits above a specific threshold -- or having accepted them in the past -- would be "a heavily weighted negative factor" to be considered in green card applications and other immigration petitions.

Stricter policies and vetting slow military's immigrant recruiting

For 10 years, the U.S. military recruited immigrants with critical language skills to serve in exchange for a chance to become U.S. citizens. In 2016, however, the Trump administration put that program on hold, concerned about inadequate vetting and security threats. The Pentagon increased the level of vetting and had been planning on relaunching the program this fall. Unfortunately, barriers remain.

Over 10,000 immigrants have been recruited through the program, which is called Military Accessions Vital to the National Interest program, or MAVNI. For 2019, Congress set a maximum of 1,000 annual recruits.

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