In a press release issued Friday, the Department of Homeland Security announced that it has extended the list of approved degree programs that qualify for the STEM optional practical training extension. STEM refers to designated degrees in the areas of science, technology, engineering, and math, which qualify graduates for an extra 17 months of OPT beyond the 12 months allowed all foreign students upon graduation from a U.S. university. The list has been expanded to include graduates in pharmaceutical sciences, econometrics, and quantitative economics, among other things.

The STEM program was created to help attract the world’s brightest scholars, and encourage economic and technological development in the United States. For a complete list of STEM degree programs, please see the list issued by SEVIS.

The White House released a press statement Thursday articulating the importance of international tourism in the U.S. economy. The administration reported that revenue from international tourism, goods, and services in the United States in 2011 rose more than 8% from 2010. The total spending of international visitors to the U.S. last year is estimated at around $153 billion, and the total number of international tourists has consistently been on the rise for several months now.

The Obama Administration took this opportunity to stress its dedication to promoting an increase in the U.S. tourism industry, which supports more than 7.6 million jobs in this country. The White House announced several initiatives, including the National Travel and Tourism Strategy, aimed at bolstering both international and domestic travel in the United States. The administration also hopes to encourage tourism in local areas that have traditionally received fewer visitors.

An important component of the President’s strategy is to encourage improvements in the Visa Waiver Program and visa interview processes. Improvements in these areas would simplify travel for many foreign travelers, and make the United States a more attractive tourist destination internationally.

For more details relating to the Obama Administration’s new tourism initiative, please refer to the official White House press release.

The Court will examine four sections of the law that have been prevented from taking effect by an injunction issued by the U.S. Court of Appeals for the 9^th Circuit. The enjoined sections: (1) allow state law enforcement officials to ask anyone to verify their immigration status after a stop, arrest, or detention if there is “reasonable suspicion” that the person is unlawfully present in this country; (2) allow state law enforcement officials to arrest individuals without a warrant if there is probable cause to suggest that the person has done something that would make him or her removable from the United States; (3) make it a state crime for a person to be unlawfully present in the United States; and (4) make it a state crime for anyone who is not lawfully present in the U.S. to seek employment in this country.

While oral arguments were presented before eight of the nine justices Wednesday (Justice Elena Kagan removed herself from the proceedings due to a conflict of interest), the Court will not release its decision in Arizona v. the United States for several months. However it is decided, this case will set an important precedent for U.S. immigration law and is likely have a great impact on the future of immigration enforcement in the United States.

Being a foreign student in the United States can be stressful and confusing. Properly navigating immigration requirements and maintaining status is extremely important. The U.S. Department of Homeland Security has created a website to help current and prospective students through the process of coming to the U.S. for study. Study in the States contains information for students currently enrolled in U.S. institutions about maintaining status, information about dependent family members, and driving in the States, among other things. The site also contains important information for prospective students. It contains a list of SEVP-certified (Student and Exchange Visitor Program) schools. Students can search for a specific institution, or may search by a geographic area of interest. Important information about the SEVIS system, applying for a visa, and what to do upon arrival in the United States is also included. If you are currently a foreign student in the States, or are considering entering into a course of study, you may find the Study in the States site very helpful.

An LPR that has remained outside of the United States for longer than a year without obtaining a reentry permit (valid for two years) may apply for a Special Immigrant Returning Resident Visa (SB-1). To do this the applicant must submit a Form DS-117, Application to Determine Returning Resident Status, along with available evidence of permanent residence within the United States, to the U.S. Consulate nearest his or her place of residence abroad. Acceptable forms of evidentiary support may include, among other things: evidence that the extended visit abroad was caused by some unforeseen circumstance; evidence of having filed U.S. income taxes within the last year; and evidence of property ownership within the United States. See 9 FAM 42.22 N1.3. After filing his or her questionnaire, the applicant must then submit to a personal interview with a consular officer, in order to determine whether or not (s)he is eligible for returning resident status. Should the consular officer determine that the applicant has met all of the requirements to qualify as a returning resident, the LPR must then submit an application for a SB-1 IV, Returning Resident Visa. See 9 FAM 42.22 N1(i).

Any LPR who wishes to reenter the United States after the expiration of his or her Permanent Resident Card, and an extended absence of longer than one year must obtain a SB-1 IV, after having shown him or herself to qualify for returning resident status through the Department of State’s consular process.

If a nonimmigrant visa holder files the proper documentation for a change of status or extension of stay in a timely manner (i.e. before the expiration of his or her I-94 or duration of stay), (s)he does not accrue unlawful presence for the time that his or her application is pending. Once his or her original I-94 expires, (s)he is no longer in an authorized status, but is still exempt from the accrual of unlawful presence. The statutory provisions at INA §212(a)(9)(B)(iv) provide that in such cases the first 120 days after the expiration of the I-94 will be tolled for good cause, meaning that they will not be counted as unlawful presence for the purposes of the statutory bar on reentry.

The Adjudicator’s Field Manual (AFM), however, has prescribed much more liberal policies for the Service’s response in such matters. The AFM states that, so long as the petition is not denied on the grounds that it is frivolous or untimely, or that the applicant worked without authorization, unlawful presence will not accrue before a decision is made, no matter how long an application is pending. See AFM at 40.9.2(b)(3)(B). The above statutory and policy protections apply even when the applicant’s request is denied, with the above stated qualification that it must not have been filed frivolously—if the application is found to have been filed fraudulently or in an untimely manner, or if the applicant worked without authorization, the date of accrual begins the day his or her I-94 expired.

Once the applicant’s request has been denied, any further action accrues unlawful presence, including appeals on denied petitions and motions to reopen or reconsider. Unlawful presence accrues throughout the appeals process and is counted against the applicant should his or her motion or benefit be denied. If the motion or benefit is granted, the unlawful presence is removed and the applicant is returned to authorized status extending back to the date his or her I-94 expired. See AFM at 40.9.2(b)(3)(D).

USCIS’ policy of tolling unlawful presence while an application is pending protects applicants from being forced to abandon pending applications upon the expiration of their status. Due to equitable tolling, applicants may remain in the U.S. legally for the duration of the application process, even after their previously approved status has expired.

In theory, Secure Communities should not place any greater burden on local law enforcement, but rather should rely on existing information-sharing systems. State and local authorities regularly submit the fingerprints of those they arrest to the Federal Bureau of Investigation (FBI) in order to check for a criminal background. Secure Communities utilizes this system by requiring the FBI to immediately forward the prints on to ICE. ICE then runs the prints through their databases to see the immigration status of the arrestee and to see if (s)he has ever come into contact with ICE before. If the system finds a match for the arrested individual and (s)he is unlawfully present or otherwise removable, ICE then should prioritize removal based on the determination of which individuals pose the greatest threat to public safety as determined by the severity of their crimes.

In making a determination of removability, ICE takes several factors into consideration including: the person’s criminal history, immigration history (e.g. previous orders of removal, etc.), family ties to the U.S., duration of stay, serious medical issues, etc. In cases involving minor crimes, ICE will often offer the person the option of voluntary departure. In such cases, the person must return to his or her country of origin at no cost to the United States government, but is not barred from returning to the U.S. legally in the future (if ordered removed, also known as deportation, the person is barred from reentering the United States for ten years).

It is important to note, however, that the immigration judicial process remains separate from the criminal judicial process. This means that while a person may be found innocent of the crime for which (s)he was arrested, (s)he could still be deported if ICE determines that (s)he violated immigration law. The Secure Communities program does not actually require that the arrested person be convicted of the crime for which (s)he was taken into custody, merely that (s)he is removable pursuant to the regulations set forth in the Immigration and Nationality Act (INA).[1]

This leads many critics of the program to be wary of ICE’s supposed dedication to prioritizing deportations. Fingerprint checks are run through the system at the time of arrest, not the time of conviction. To critics this process seems to undermine the purpose of Secure Communities because it does not provide for the detention and deportation of the most violent criminals, but rather anyone who happens to come into contact with the law. This tendency leads many to worry that the program will do more harm than good.

The Secure Communities program also raises concerns of racial profiling. Many worry that because there is no practical punishment in place for officers who abuse the system, people may begin to take advantage of it, making unwarranted or “discretionary” arrests based on race, simply to question an individual’s immigration background and put him or her into the immigration system.

In the event that an LPR loses his or her valid, unexpired reentry permit, a duplicate cannot be issued. The LPR must file another I-131 to apply for a new permit. In order to prevent fraud, the applicant must present evidence verifying the loss of the original reentry permit (e.g. a police report). This process, however, does not apply to LPRs abroad, as the I-131 process cannot be completed outside of the country. The following are options to be considered by LPRs who have lost their reentry permit while abroad.

The first option available to LPRs who have lost their reentry permit while abroad is to return to the United States as soon as possible. A person with LPR status in the U.S. may travel abroad and return to the U.S. with a valid I-551, Permanent Resident Card (“Green Card”). No further documentation is needed, as long as the period of travel does not exceed one year. This is the best option for those with the ability to return within a year of the date of departure.

If it is not possible for the LPR to return to the U.S. within a year, (s)he must file a Form DS-117, Application to Determine Returning Resident Status. This form, filed with the Department of State, allows LPRs to return to the U.S. after absences of greater than one year, if they can show their intention to maintain their permanent resident status while abroad. As with the filing of an I-131, it is to the applicant’s advantage to show that (s)he possessed a valid reentry permit, and that it was lost, as this will show the applicant’s intent to maintain status.

Summary: In the event that an LPR misplaces his or her reentry permit while inside the United States, (s)he should file a Form I-131 to replace it. If the LPR is outside the U.S. at the time the document is lost, (s)he should try to return before the one year anniversary of his or her departure. If this is not an option, (s)he must file a DS-117 to apply for a returning resident visa.

The employer may never make deductions from the beneficiary’s salary in order to recover expenses incurred in conducting regular business such as tools and equipment, and including “attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition.” See 20 CFR §655.731(c)(9).  The Code is explicit on this matter; the employer is not to pass on any of the costs associated with the H-1B process, if that fee is attached to a part of the process that is to be carried out by the employer.

There are a few deductions which are permissible, so long as requiring the beneficiary to pay the deductions does not drop his or her salary below the prevailing wage specified by the Department of Labor in the labor certification. If the employer imposes unauthorized fees on the employee that push the employee’s actual wages received below the amount required by the prevailing wage, the employer will be required to pay back wages, and may be subject to civil monetary penalties and/or disqualification from future H-1B programs and immigration benefits. See 20 CFR §655.731(c)(11).

Summary: In general, when an employer employing foreign nationals decides to make deductions from such an employee’s salary, the employer must be sure that doing so would not push the employee’s actual wages below the prevailing wage required by the labor certification. Exceptions are made for “authorized” deductions that are required by law and/or that are also made against the wages of U.S. workers similarly employed.

The type of business in which the petitioner must invest is not restricted beyond the qualification that it must be a “commercial enterprise.” The term commercial enterprise refers to any “for-profit activity,” not including “non-commercial activity such as owning and operating a personal residence.” See Matter of Izummi (interim decision). “The required amount of capital must be placed at risk ‘for the purpose of generating a return on the capital placed at risk.’” In a survey conducted by the Government Accountability Office (GAO), the nature of businesses established span a wide range including hotels, manufacturing companies, restaurants, sales, real estate, farms, technological services groups, and many others.

The term capital refers to any “cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable.” See 8 CFR §204.6(e). Under normal circumstances, the amount of the investment required to qualify as an immigrant investor under this visa classification is $1,000,000. The Code of Federal Regulations, however, distinguishes a set of “target employment areas” in which the required capital is reduced to $500,000. See 8 CFR §204.6(f). A target employment area is defined as “an area, which at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.” See 8 CFR §204.6(e).

Summary: In order to qualify for the EB-5 immigrant visa classification, the petitioner must show that (s)he has the required funds to actively invest in an enterprise that will create no less than 10 full time jobs for U.S. citizens or other qualified workers. Not only must the petitioner provide sufficient funds—acquired lawfully—but the petitioner must also take an active role in the enterprise in which (s)he invests.