By REUBEN S. SEGURITAN
The Child Status Protection Act, which took effect on August 6, 2002, allows certain green card applicants to retain their classification as a child even if they are already 21 years old or over.
But the procedure to apply for immigration benefits is confusing mainly because implementing regulations have not been issued by the Department of Homeland Security or the Department of State.
In the absence of such regulations, applicants have relied on policy memos of the United States Citizenship and Immigration Services (USCIS), cable instructions of the Department of State and court decisions. But often, these memos and court cases did not yield favorable results.
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For example, the National Visa Center which processes immigrant visa applications deletes the names of children of the applicants once they turn 21. And these children are not allowed to join the immigration interview of their parents (who are beneficiaries of their siblings’ petitions) |
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even though they are eligible to apply as derivative beneficiaries.
What should a derivative beneficiary do to avail of the immigration benefits provided under the CSPA? How does the derivative child know if he/she is covered under the law?
Under Section 3 of the CSPA, the derivative child of a beneficiary of a family-based visa petition is entitled to have his/her age calculated according to a certain formula.
The CSPA formula states that the waiting time for the visa petition to be adjudicated is subtracted from the age of the child on the date that the visa priority date of the child’s parent becomes current.
According to an INS memo, “the date on which an immigrant visa number becomes available” is the first day of the month that a visa becomes available in a particular preference category as indicated in a monthly visa bulletin published by the Department of State.
But in order to freeze the child’s age below 21, the CSPA requires the child to have “sought to acquire” the status of an alien lawfully admitted for permanent residence within a year of the visa availability date.
The USCIS considers the child to have “sought to acquire the status” if he/she applied for adjustment of status, or an immigrant visa, or be the beneficiary of an I-824 within one year of the visa availability date. The filing of a labor certification or visa petition does not satisfy the requirement.
A child included in a petition filed for a parent by the parent’s brother or sister must submit a completed DS 230 for himself/herself. The DS 230 filed by the parent does not satisfy the requirement even if the child’s name is listed on the parent’s DS 230.
The eligibility for benefits under the CSPA may be determined at the time a visa application is adjudicated.
According to the U.S. Embassy in Manila, Philippines, a derivative beneficiary who believes he/she is qualified for immigrant visa may submit an application for review to a consular officer. The applicant should submit Form DS 230 (Parts 1 and 2), a valid passport, birth certificate and notice of approval of the family-based petition of his/her parent and a fee of $400.00.
The U.S. Embassy will review the case and will inform the applicant of its determination.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. He is a former law editor and professor and author of “We Didn’t Pass Through the Golden Door.” He frequently writes and speaks on immigration and other legal topics. He has received numerous awards in the U.S. and abroad, including several outstanding law awards and Philippine Presidential awards. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)
Posted by admin on February 18th, 2009 with no comments.
Read more articles on Family based visas.
(c)2009 Immigrationnewsarticles.com
By REUBEN S. SEGURITAN
A viable option for non-immigrants seeking to come to the U.S. to invest and operate a business enterprise is the E-2 visa.
As a basic requirement, the E-2 visa applicant must be a national of a country with a treaty of commerce or navigation with the U.S.
For this purpose, it is not the place of incorporation of the business that determines eligibility but the nationality of the individual owners of the business applying for the E-2 visa. If more than 50% of the business is owned by individuals from a state with a treaty with the U.S., they can apply for E2 visa to establish and operate this business in the U.S.
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Applicants in this category must have extensive documentation detailing the business plan, the amount of investment, the nature of the capital, the jobs to be created by the enterprise, and how the proposed enterprise will benefit the U.S.
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The applicant must seek to enter the U.S. to develop and direct the operations of the enterprise in which he/she has invested. He/she must have the ability to do so by showing ownership of at least 50% of the business or have operational control in the company.
The capital investment needs to be substantial. Investments as defined by the regulations must pertain to funds or assets placed at the disposal of the business with the objective of making a profit and subject to a risk of loss incident to the business operations.
While there is no specific dollar amount specified by immigration regulations, the investment must represent a significant proportion of the total value of the business enterprise or it must be sufficient to establish a profitable and viable business. In the past, some U.S. consulates have accepted investments in the amount of about $50,000.00 or more.
One of the issues affecting E-2 is how to document investments. The source of the funds need not be outside the U.S. nor is it required that the source must be from a treaty state. However, the capital must be in the possession or control of the treaty investor. It is possible that the source of funds may be from a gift or a loan to the E-2 applicant as long as it is attributable to him/her and that it is invested in the business enterprise to be set up in the U.S.
The capital invested must be irrevocably committed to the enterprise, meaning that the mere intent to invest in or holding the money in a bank account without commitment to the business will not suffice to meet the investment requirement.
To show commitment, the applicant may show, for instance, contracts for purchase and sale of a property or business in the name of the enterprise or an escrow for the purchase conditioned on the approval of the E-2.
Payments for purchases, leases or rents of equipment or machinery for the business may also be shown as qualifying investments.
The business enterprise must be bona fide or a real and active commercial undertaking and must meet the legal requirements for doing business in the U.S. It is not just speculative or a “paper organization” just incorporated without business activity.
The maximum validity of E-2 treaty investor visa depends on reciprocity with the alien’s country although it is usually five years. The initial period of admission is not more than two years.
Immediate family members, including spouse and unmarried children under 21 of the principal E-2 treaty investor holder, may be admitted in the U.S. on a derivative status.
(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. He is a book author and a former law editor and professor. He frequently writes and speaks on immigration and other legal topics. He has received numerous awards in the U.S. and abroad, including several outstanding law awards and Philippine Presidential awards. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)
Posted by admin on February 11th, 2009 with no comments.
Read more articles on Business visas.
(c)2009 Immigrationnewsarticles.com
(c)2009 Immigrationnewsarticles.com