Law Office Of
ALLISON SPITZ-PERRY
      Attorney-At-Law

Recent Postings:


PRESIDENT'S PUBLIC PROCLAMATION TEMPORALLY FREEZING CERTAIN GREEN CARD ISSUANCE  NO LONGER IN EFFECT!


On April 22, 2020, President Trump issued a proclamation suspending the entry of any individual seeking to enter the United States as an immigran who:

  • Is outside the United States on the effective date of the proclamation;
  • Does not have a valid immigrant visa as of April 23, 2020; and
  • Does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter.

       The following catagories are exempt from the Proclamation:  
    • Non-immigrant Visa Holders.
    • Asylum seekers, anyone filing under the Cuban Adjustment Act.
    • Lawful permanent residents (green card holders)
    • Individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other work essential to combating COVID-19 (as determined by the Department of Homeland Security (DHS) and the Department of State (DOS))
    • Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program
    • Spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on an IR-4 or H-4 visa
    • Individuals who would further important U.S. law enforcement objectives (as determined by DHS and DOS)
    • Members of the U.S. Armed Forces and their spouses and children
    • Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa
    • Individuals whose entry would be in the national interest (as determined by DHS and DOS)
      • Routine visa services at all U.S. embassies and consular posts around the world have been suspended as of March 20, 2020. U.S. embassies and consulates continue to provide urgent and emergency visa services as resources allow. DOS intends to continue to process visa applications for farm workers and medical professionals assisting with COVID-19.
      • U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended in-person services through at least May 3, 2020, but continues to accept and process applications and petitions, including applications requesting an extension or change of status.
      • The U.S. borders with Canada and Mexico are closed for non-essential travel until at least May 20, 2020.
      • With some exceptions, the entry of individuals who were present in China, Iran, the Schengen Area, the U.K. and Ireland, during the 14-day period before their attempted entry into the United States has also been suspended.
      • The Proclamation requires a review of temporary visa programs within 30 days and recommendations to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.
      • The Proclamation is valid for 60 days but can be extended.


What Our Office Is Doing:

We are closely monitoring the situation and will update our clients as soon as we know more about the implementation of this Proclamation. In case of an emergency, please contact Allison Spitz-Perry at 212-737-0343.


NEW PUBLIC CHARGE RULE FACTS - NO LONGER IN EFFECT!


 

What Is New?

 

U.S. Citizenship & Immigration Services (USCIS) implemented a new rule, effective February 24, 2020, to decide who will be considered a “Public Charge” (someone that is likely to need financial assistance from the government). The Department of State (DOS) is also seeking to have its Public Charge rule take effect on the same day.

 

How Does This Impact Me?

 

If you or your employee are seeking to remain or come to the United States either temporarily or permanently and are not in one of the exempt categories below, the rule will apply to you if you file on or after February 24, 2020.  You will need to provide additional information and documents to USCIS as part of your application. This includes information about your health, family, education, income, assets, liabilities, receipt of any public benefits, and an Affidavit of Support from a financial sponsor.  If you are found to be inadmissible as a Public Charge, you may be able to pay a bond and still adjust, change or extend your status.  

 

How Does This Impact Me?


Not everyone is subject to the public charge rule. The most common exceptions are the following:

  • Asylees and Refugees
  • Applicants for U or T Nonimmigrant Status
  • VAWA Self-Petitioners
  • Special Immigrant Juveniles
  • Applicants Seeking Temporary Protected Status
  • Applicants under the Cuban Adjustment Act

 

What Should I Do Now?

 

Talk to me about how the new rule affects you.

Talk to me about any past receipt of benefits and before applying for any new benefits.

 

 

What Benefits Are Problems for Public Charge?

 

  • Cash Assistance for Income Maintenance (includes TANF, SSI, and federal, state, and local assistance programs)
  • SNAP or Food Stamps
  • Medicaid (with exceptions listed below)
  • Housing Assistance (Public Housing or Section 8 Housing Vouchers and Rental Assistance)

 

What Benefits May My Family and I Still Receive?

 

Any benefits not on the above list are NOT considered as public benefits under the public charge rule, such as:

  • Benefits received by the immigrant’s family members.
  • Benefits received by U.S. Armed Forces Service Members
  • Emergency medical assistance
  • Medicaid received by (1) children under 21; (2) during pregnancy or within 60 days of pregnancy; or (3) under the Individuals with Disabilities Education Act (IDEA).
  • Heath Insurance under the Affordable Care Act
  • Social Security and Medicare
  • WIC
  • CHIP
  • Energy Assistance (LIHEAP)
  • Pell grants and student loans
  • Worker’s Compensation or Unemployment Benefits
  • Tax-related cash benefits

 

If you want more information about public charge or to learn if you might be eligible for immigration benefits or relief, contact me at aspitz@spitzperry.com

 

 


Reasons to Apply for US Citizenship and How President Trump’s Executive Order on Immigration

Can Affect Some Legal Permanent Residents

 

If you have been a Permanent resident for at least 5 years, or you are married to a US Citizens and have been a Permanent resident for at least 3 years, and have maintained “continuous residence in the US, then most likely you will be eligible to apply for US Citizenship.  Extended absences from the US or criminal violations can render you ineligible to apply and are discussed below.

Why apply? 

1.  President Trump’s recent Executive Orders on Immigration. 

 

The Executive Order signed by President Trump on January 27, 2017 included a Ban on entry for at least 30 days of all immigrants and nonimmigrants from designated countries including nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  This included some “discretion” for Legal Permanent Residents with DHS having some “limited discretion to admit LPRs on a case-by-case basis, following a thorough security review.” The Executive Order allows LPRs to be allowed to board planes and  their cases adjudicated at the port of entry.

The Administration has now back-peddled with a statement issued by Secretary Kelly of the Department of Homeland Security reading "I hereby deem the entry of lawful permanent residents to be in the national interest." 

There is still much to be concerned about since the following language was included in the press statement:

“Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

 

The administration has left the window wide-open for various interpretations and we do not know what additional Executive Orders will be issued in the near future.

 

While there is also language which includes dual-citizens from the 7 nations in this mess of legal vagueness, status as a US Citizen provides protections which status as a Permanent Resident does not.

 

2. Deportable Crimes


Think your status as a Legal Permanent Resident can shield you from deportation?  Wrong, there are currently a multitude of crimes which can result in the loss of your Permanent Resident Status and it is rumored that the Trump Administration will be expanding this list making it even easier to lose Permanent Resident Status. 

 

This is a broad list which I am happy to discuss in person with clients.  This is a summary and not a complete list of reasons why a person may be deportable from the U.S.:

  • Extended absences from the US.
  • Conviction of a crime involving moral turpitude that was committed within five years after the date of U.S. admission (or ten years if the person received a green card as a criminal informant) and is punishable by a sentence of at least one year.
  • Conviction of two or more crimes involving moral turpitude at any time after U.S. admission, where the two  crimes did not arise out of a single scheme of misconduct.
  • Conviction of an aggravated felony at any time after U.S. admission.
  • Failure to report your change of address.
  • Failure to register as a sex offender.
  • Conviction of a drug crime (or a conspiracy or attempt to commit one), whether in the U.S. or another country, at any time after U.S. admission. There’s an exception for a single offense involving possession for personal use of 30 grams or less of marijuana.
  • Is, or at any time after U.S. admission has been, a drug abuser or addict. Notice that no actual court conviction is needed to be deportable under this section. The person’s own confession to drug use, or evidence on a medical report, could be enough.
  • Within five years after U.S. entry, has become a public charge (dependent on need-based government assistance) for reasons that did not arise after the person’s U.S. entry.

"Crimes of moral turpitude" are not well defined in U.S. immigration law. However, the Department of State has provided guidance, noting that the most common elements of a moral turpitude crime will include "fraud, larceny, and intent to harm persons or things." Crimes involving dishonesty and theft will almost always be considered crimes of moral turpitude. Other examples would be assault with the intent to rob or kill, spousal abuse, and aggravated driving under the influence ("DUI" or "DWI").  Since this is poorly defined, there is room for discretion on the part of the adjudicating Officer or Judge.

Having committed any of the above offenses can prevent you from receiving status as a US Citizen but once you are a Citizen, your status is protected should any of the above occur.  Please feel free to contact this office for a consultation should you have questions regarding your history and decisions to apply for US Citizenship.

3.      Eligibility for the 'Unlimited Marital Deduction' for Estate Tax purposes.

A provision in United States Federal Estate and Gift Tax Law that allows an individual to transfer an unrestricted amount of assets to his or her spouse at any time, including at the death of the transferor, free from tax. The unlimited marital deduction is considered an estate preservation tool because assets can be distributed to surviving spouses without incurring estate or gift tax liabilities.   Without the Unlimited Marital Deduction, the surviving spouse pays estate tax on the entire estate. 

The unlimited marital deduction applies only to surviving spouses that are United States Citizens. A qualified domestic trust (or QDOT) may be obtained to provide unlimited marital deductions for non-qualified spouses but this is not automatic and requires planning.

 

Immigration Options for Citizens of the Philippines, Non-Immigrant Visa Options Without Long Waits Exist.


Family based petitions for nationals of the Philippines have been backed up for years.  Immediate Relative Petitions are “current”, meaning no backlog, but what are your options if you do not qualify as an Immediate Relative?  

 

One option would be temporary employment visas.  Yes, the H-1 has become almost impossible to obtain but there are other options which include O-1 visas for Aliens of Extraordinary Ability, P-1 visas for Athletes and L-1 visas for Intracompany Transferees.

 

O-1 Extraordinary Ability visas are available for leaders in the fields of fashion, the arts (both fine and performing), business and science.  The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

 The O nonimmigrant classification is commonly referred to as:

  • O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
  • O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
  • O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance
  • O-3: individuals who are the spouse or children of O-1’s and O-2’s

 

P-1A Internationally Recognized Athlete The P-1 classification applies to you if you are coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.

 

P-1B A Member of an Internationally Recognized Entertainment Group

The P-1B classification applies to you if you are coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

 

P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program

The P-2 classification applies to you if you are coming temporarily to perform as an artist or entertainer, individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the United States and an organization in another country.

 

P-3 Artist or Entertainer Coming to Be Part of a Culturally Unique Program

The P-3 classification applies to you if you are coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique.

 

L-1A Intracompany Transferee Executive or Manager

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

 

L-1B Intracompany Transferee Specialized Knowledge

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. 

 

Unlike the H-1, all of these visas are current regardless of which country you live in.  Interested?  Contact Perry & Spitz-Perry.


GAY MARRIAGE, IT IS NOT ALL EQUAL.  THE VALUE OF PRENUPTIAL AGREEMENTS AND ADOPTION


Did you know that the vast majority of states still ban Marriage Equality?  What does this mean to you?  It means a bunch of inconsistencies; a few which may have meaning to you are as follows:

 

The Immigration and Nationality Act is Federal which means that the Federal Government, and not individual states, control Immigration laws and policy in the US.  This means that if you marry in a Marriage Equality State, but live in a Non-Marriage Equality State, you can still apply for Immigration benefits for your spouse.  For example, if you and your same sex partner legally marry in a Marriage Equality State such as New York, or another country which recognizes same sex marriage, you are considered Legally Married by the United States Citizenship and Immigration Services and, if you otherwise qualify, you can sponsor your spouse for a green card or other Immigration Benefits.  What if  you married in New York but live in a Non-Equality state such as Pennsylvania at the time you want to apply for Immigration benefits?  You can still apply for Immigration benefits with the USCIS since it is the place of Celebration (where you were married) and not the place of residence which governs.  This means that you can apply from any State as long as you otherwise qualify for US benefits.  This is great news but…

 

What if your marriage does not work out?  According to a study by the Williams Institute, a Los Angeles based think tank, the divorce rate for same sex couples is currently 50% of the divorce rate for heterosexual couples, but unfortunately not all marriages work out.   The majority of states do not recognize same sex marriages.  They will not grant a divorce for a couple who they do not consider to be married.  Unfortunately many of the states which recognize same sex marriage have a residence requirement.  So let’s take our couple who married in New York but now live in Pennsylvania. Most likely they will no longer qualify for a divorce in New York due to New York’s residence requirements.  Pennsylvania does not grant divorces to same sex couples.  While you can shop for states which will marry you, it does not work the same way for divorce.

 

What does this mean? It means that if you do not reside in a marriage equality state, as a same-sex couple you may not be able to divorce.  What can you do to protect your assets and assure a fairly smooth breakup?  The best way is by utilizing a prenuptial agreement; some states even recognize a postnuptial agreement.  While not romantic, this is a legal document, like a contract, which distributes the assets of the marriage.  When properly executed, prenuptial agreements are recognized by all states and can prevent a bad situation from becoming worse.

 

The same is true for children and child custody.  Protect yourself and your family; make sure that children of same-sex marriages are adopted by the non-biological parent or both parents.  If the marriage breaks up the non-biological parent will have a very difficult time obtaining join-custody if the biological parent or sole-adoptive says no. 

 

Finally, work with a lawyer and financial/estate planner who have experience with these complex issues and other issues which can arise for same-sex couples and their families.


UPDATED INFORMATION ON THE IMMIGRATION REFORM BILL
 

The highly anticipated immigration reform bill has been formally introduced by a bi-partisan group of Senators.  The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, includes provisions for increased border security, legalization for individuals present in unlawful status, and modernization of the legal immigration system.   Some highlights of the very extensive bill include the following:

 

  • Legalization: A process by which noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and could apply for naturalization 3 years after acquiring a green card. The proposed legislation also includes generous provisions for Dreamers and agricultural workers.
  • E-Verify: All employers would be required to begin using the E-Verify system over a five-year phase-in period.
  • H-1Bs: Provides an H-1B visa cap increase from 65,000 to 110,000, and an increase of the U.S. advanced degree exemption to 25,000 which would be limited to U.S. advanced degree holders in science, technology, engineering, and mathematics (STEM) disciplines.  Adds a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, the addition of a non-displacement attestation, and a change the prevailing wage formula.  The bill would also provide Employment Authorization Documents for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.
  • Employment-Based Immigrants: Exempts the following categories from the quota: EB-1 immigrants, doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. It would also add a new "EB-6" category for certain entrepreneurs.
  • Employment-Based Non-Immigrants: Creates a W-visa program for lower skilled workers, which would apply to individuals having foreign residence who will come to the U.S. to perform services or labor for registered employers.
  • Asylum: Eliminates the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.
  • Security Provisions: Provides enhanced border security provisions, including among other things funding for 3,500 additional Customs agents nationwide, a process for creating border security accountability, and authorization and enhanced funding for border crossing prosecutions.
  • Family-Based Immigrants: Move the current FB-2A category into the immediate relative classification, allow for derivatives of immediate relatives, eliminates the FB-4 category for brothers and sisters of US Citizens, caps the age of eligibility of married sons and daughters of U.S. citizens at 31, and brings back the V visa category.

 

This is a very brief synopsis of the 800+ pages of the proposed legislation.  The blog will be updated as more information is released and we analyze additional sections of the legislation.

IMMIGRATION AND THE REMOVAL OF DOMA, WHAT IT MEANS TO THE LGBT COMMUNITY 

The Defense of Marriage Act (DOMA)(Pub. L. 104-199, Sept. 21, 1996, 110 Stat. 2419)

is a federal law that denies federal recognition of same-sex marriages and authorizes states to refuse to recognize same-sex marriages licensed in other states.  Under the provisions of DOMA, the federal government must follow a definition of the word marriage that means "only a legal union between one man and one woman as husband and wife." Likewise, the word spouse is defined as a "person of the opposite sex who is a husband or a wife." These definitions are meant to preclude a same-sex couple that has been married in a state from being eligible for federal benefits such as married Income Tax, Social Security survivor benefits and, in some cases, Immigration Benefits.

 

Because Immigration Benefits such as green cards are governed by federal law, DOMA effectively prevents US Citizens from sponsoring their same sex spouse for a green card as an Immediate Relative.  This benefit is available through marriage to a partner of the opposite sex, but not to many members of the Lesbian, Gay, Bisexual and Transgender (“LGBT”) community.

 

There are two chances for change.  One is through Immigration Reform which includes the issuance of Immigration Benefits to same sex couples (supported by President Obama).  The second is the elimination of DOMA.  Currently there are two potentially landmark cases in front of the Supreme Court which could result in DOMA being declared unconstitutional.  With the support of President Obama, recognition of same sex couples for Immigration Benefits has been included in proposed legislation for Immigration Reform which is being negotiated in Congress right now.

 

What can you do TO PREPARE TO LEGALIZE YOUR MARRIGE AND YOUR PARTNER’S IMMIGRATION STATUS UNDER FEDERAL LAW? 

 

First and foremost, DOCUMENT.  If you are in a relationship and hope to one day to petition for your spouse as an Immediate Relative then start to document the relationship now.  FIND AND ORGINIZE photos of the two of you together, keep copies of all financial documents which show you co-mingle funds (joint loans, purchases, etc.), open joint bank and credit card accounts.  Keep proof OF HOW LONG YOU HAVE lived at the same address such as post-marked envelopes and have both names added to all leases and utility bills where possible.  It will be your responsibility to prove that the marriage is real, this is done through documentation.  EVIDENCE OF PLANE TICKETS OR ETICKETS FOR JOINT TRIPS AND HOTEL RESERVATIONS, WILLS, LIVING WILLS, POWERS OF ATTORNEY’S NOTE, WILL IT MATTER IF THEY DID NOT MARRY UNDER STATE LAW?


You can also contact your local Congressional Representatives and let them know how you feel about DOMA and Immigration Reform.

 

Follow this blog for additional information and updates on this important topic.

MEETING THE STANDARD OF THE USCIS IN THE HIRING PROCESS
 
The Immigration and National Act (INA) forbids hiring of illegal aliens in the workplace, but how and when does one inquire as to the legal status of the worker?

 

While it is illegal to hire an unauthorized worker, a potential employer cannot ask for documents, or even ask the potential employee about their status in the United States until after the hiring process is completed. The INA protects employees, at all stages of the hiring process practice, from discrimination.

 

 

To prevent discrimination, the employer should treat all people equally when:

 
  • Announcing a job.

 

  • Taking applications.

 

  • Performing interviews.

 

  • Making job offers.

 

  • Verifying the individual’s authorization to work.

 

  • Hiring the individual.

 

  • Terminating the individual’s employment.

 

 

Once an offer is made and accepted, the employer has three business days to complete Form I-9 for the new employee. It is through this process that the employer will verify that the worker is properly documented by requiring proof that the worker is authorized to work in the U.S. This proof is photocopied and attached to Form I-9, then stored on the business premises – either electronically stored or stored in a file. The key is to maintain the form and documentation in the same format for each employee – consistency is the key to successful I-9 record keeping
 
The required documentation for Form I-9 offers the employee a range of acceptable documents which would include either (see Form I-9) one from “List A” or one from “List B” and one from “List C” as Documents are considered acceptable as long as the documents presented by the employee reasonably appear to be genuine and to relate to the employee. Employers must not:

 

In addition, the employer can now protect him/herself through a free service provided by the USCIS called E-Verify. E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States and can be accessed at www.uscis.gov. By submitting the required information about the worker and their documentation, the employer will receive a determination as to the status of that worker, thereby adding an additional layer of protection to the hiring process.
 
Employers who knowingly hire illegal aliens can be subject to both civil and criminal penalties. Protect yourself and the interests of your business by maintaining I-9 files and exercising care in the hiring process.