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IMMIGRATION LAWYERSTOOLBOX

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Discover how immigration attorney Shabnam took on the Trump administration, fought for immigrant rights through groundbreaking lawsuits, and continues to challenge unjust policies read on to learn how her work is making a difference!

08 ARE WE READY FOR IT? THE LOOMING THREAT TO STARTUP IMMIGRATION

Fiona McEntee, Esq

P-1 VISA PRIMER

Genie Doi, Esq.

THE EVOLVING LANDSCAPE OF IMMIGRATION LAW: A CALL FOR ADAPTABILITY AND RESILIENCE by

by Flavia Lloyd Santos, Esq

THE OVERLOOKED PITFALL OF AUTOMATIC CITIZENSHIP: INA 320 AND PASSPORT REVOCATIONS

by Anna Sergeeva, Esq

I SWEAR TO TELL THE TRUTH HOW TO ANTICIPATE, PREVENT & POSSIBLY REVERSE A 6C MISREPRESENTATION FINDING IN CONSULAR PROCESSING CASES

Janice Flynn, Esq

Natalia Polukhtin, Esq

Publisher’s Note

Dear Toolboxer,

We are only two months into the new administration, and as expected, it’s already been a whirlwind. Thankfully, we have a strong and dedicated immigration bar ready to support not only our clients but also one another.

In this issue, we are proud to share the inspiring story of a colleague who stood up against discriminatory policies during the previous administration along with practical tips on how we can rise to meet similar challenges now

At the same time, we know that success in immigration law requires mastering the day-to-day fundamentals. That’s why this issue is packed with step-by-step guidance on how to grow and strengthen your business immigration practice so you’re ready for both today’s cases and tomorrow’s opportunities.

Personally, I’ve found that the greatest periods of professional growth often come during the hardest times. I experienced that firsthand during the last administration it was then that both my firm and the Immigration Lawyers Toolbox grew beyond what I imagined I truly believe we can do even more this time around.

So don’t let the changes ahead overwhelm you Step into the challenge. This is our moment to grow and lead.

John Q Khosravi,

Esq President of the

Immigration Lawyers Toolbox®

CONTRIBUTORS AND STAFF

If you would like to be considered for submitting an article please contact: Info@ImmigrationLawyersToolbox.com

CONTRIBUTING AUTHORS PRESIDENT & CHIEF EDITOR

JOHN Q. KHOSRAVI, ESQ.

COVER & LAYOUT

CAELA DELA CRUZ

FIONA MCENTEE, ESQ.

GENIE DOI, ESQ.

FLAVIA LLOYD SANTOS, ESQ.

ANNA SERGEEVA, ESQ.

JANICE FLYNN, ESQ.

NATALIA POLUKHTIN, ESQ.

SHABNAM LOTFI, ESQ.

Disclaimer. None of the information provided here is intended as individual legal guidance The laws change frequently and some of the information may become outdated. Please consult with an attorney in private to discuss an individual case

NEW GREEN CARD HOLDERS BY

REGION [2023]

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by Country of Birth in 2023)

Are We Ready for It? The

Looming Threat to Startup Immigration

by Fiona McEntee, Esq.

Fiona McEntee, Esq.

fiona@mcenteelaw com

mcenteelaw com

As an immigration lawyer who works closely with immigrant founders and international startups, the return of a Trump administration raises serious concerns about the future of the International Entrepreneur Parole (IEP) program.

"But I thought Trump just wanted to deport undocumented immigrants," some might think But us immigration lawyers know better. To quote the iconic Taylor Swift, “I think I've seen this film before, and I didn't like the ending ”

Controversial policies from the previous Trump administration, such as the Muslim ban and family separation, often dominated the headlines However, those of us in business immigration remember all too well that this area of practice was far from spared. As Stuart Anderson aptly noted in Forbes, “Although Donald Trump said he favored ‘merit-based’ immigration, his policy team never seemed to find high-skilled foreign nationals it wanted to let work in the United States.”

The IEP program as a feasible option is a relatively recent addition to the immigration landscape It allows high-potential startup founders to temporarily live and work in the U S , and it could, once again, be at risk. This will leave immigrant entrepreneurs, who are critical drivers of innovation and job creation, questioning their place in the startup ecosystem in the U S

The History of IEP

To appreciate the impending risk to IEP, we must explore its tumultuous past Recognizing the deficiency in the current system and the lack of a

“startup visa” for immigrant founders, the Obama administration attempted to address the problem by creating the IEP program. Using the existing authority of parole, IEP was envisioned to be a stop-gap executive action reserved for specific immigrant startup founders. However, its timing due to take effect 6 months into the Trump administration’s tenure was illfated. The Trump administration swiftly took measures to delay the implementation of the program Notwithstanding outcry from key stakeholders and even litigation by the National Venture Capital Association, and others, it ultimately tried to rescind IEP completely.

The Trump administration’s stance on IEP ensured that it remained an option only in theory. This was the status quo until May 2021, when the Biden administration announced that it would be reviving IEP Startup immigration lawyers rejoiced, thinking we finally had a modern startup-specific immigration option for our clients However, despite the previous administration's good intentions, the long and uncertain processing times and procedural hurdles have resulted in IEP being largely unused until now

However, with recent USCIS updates announcing the elimination of current IEP application backlogs and a commitment to deciding new applications as quickly as possible, the program may finally live up to its potential Should the program and USCIS’ support remain intact, we are confident that many more IEP cases will soon be filed and approved This should bring us closer to the estimated hundreds of thousands of jobs these immigrant startup founders could create

Who Can Apply for International Entrepreneur Parole?

As long as IEP remains an option, immigration attorneys who work with startup founders should familiarize themselves with the parameters of the program

Immigrant entrepreneurs may be eligible for the IEP if they:

Have major ownership (at least 10% initially) in a U.S. startup created within the last 5 years. Play a central and active role in the startup

Can show that the startup will have a positive public benefit on the U.S. by having:

Received a significant investment from qualified U S investors (typically venture capitalists, angel investors, or startup accelerators). Received significant awards or grants from federal, state, or local government entities Partially meeting one or both of the above with added evidence showing potential for rapid growth or job creation.

New Thresholds

Recent updates have raised the financial requirements for IEP applicants and their investors.

As of October 1, 2024, the amounts considered significant are:

Investment Threshold: The investment threshold from qualified U.S. investors has increased from $264,147 to $311,071

Government Grants or Awards: The threshold for government awards or grants has risen from $105,659 to $124,429.

Keep in mind that there is some flexibility for founders, and those with strong growth potential or job creation prospects might still qualify even if they fall short of these amounts.

Qualified Investors

A “qualified investor” in

context is someone who has a proven track record in investing in startups. Specifically, the investor must have invested at least $746,571 (up from $633,952) in other startups, and at least two of those startups must have created at least five jobs or generated $622,142 in revenue with annualized revenue growth of at least 20%.

These requirements aim to ensure that the capital behind the startup is serious, strategic, and capable of propelling founders forward Immigrant founders aren’t just creating companies; they’re building futures. The IEP program acknowledges this journey and offers a path that doesn’t demand perfection or extraordinary ability but rather potential and ambition.

How Does IEP Work Procedurally?

IEP is a two-step process. Applicants first need to file an IEP application (Form I-941) with the USCIS. If the applicant is applying for IEP from the U S , they can apply for advance parole with the I-941

Why IEP Matters

Since fiscal year 2021, USCIS has received only 94 IEP applications. This is no reflection on the demand for this program and the low filing statistics come as no surprise given the procedural/processing times issues mentioned above

As of July 2024, the USCIS had approved only 26 cases. I’m proud to share that one of those approvals was one of our McEntee Law Group clients Our client is the founder of a high-potential AI startup, and we were able to get his case expedited and approved in a few months. This may be record time, given that many of the other cases have taken years to be adjudicated Our client is now happily in the U S on his approved IEP His company has already created American jobs and is actively recruiting for several open positions. He is exactly the type of immigrant founder we want and need here in the U S

IEP is a sensible policy that should

Once the I-941 is approved, applicants must either visit a U.S. Embassy or Consulate to obtain a travel document (boarding foil) or depart the U S using their advance parole They will then need to present the IEP approval and the boarding foil or parole document at a U S port of entry for a final parole determination. Note that Canadian nationals traveling directly from Canada to a U S port of entry may present an approved Form I-941 without first obtaining travel documentation

receive bipartisan support Not every aspect of immigration should be split down party lines, and IEP perfectly illustrates this. At its core, IEP emphasizes economic growth and job creation It is especially important for immigrant founders who work in STEM and emerging fields like AI and quantum, where foreign nationals play an “outsized role”.

The Uncertain Road Ahead for IEP

Just when we thought we were out of the woods with IEP, a new Trump

Administration has moved into the White House. Given the treatment of IEP last time, the program’s existence may face ongoing uncertainty, and it could unfairly become a subject of political debate

Policy changes, administrative delays, and shifting priorities have made the IEP program challenging to navigate, even for experienced immigration attorneys The program’s status remains precarious, and both attorneys and clients must be aware that eligibility requirements and availability could change with future administrations.

Immigration attorneys can play an active role in advocating for all types of immigration including IEP We can use our voices to write OpEds, do media interviews, and think of other creative ways to advocate for our clients and the policies on which they rely Remember that championing causes we believe in never goes out of style

The IEP program’s journey has been turbulent, largely due to political

challenges Despite its setbacks, the IEP program now fills a critical gap in the U.S. immigration framework by offering a pathway tailored to innovative entrepreneurs At the very least, IEP’s existence underscores the need for modern and adaptable immigration pathways for startup founders who don’t fit traditional visa categories. Immigration attorneys should monitor this evolving program closely and be prepared to guide clients through the complexities it presents, ensuring they make the best decisions based on their unique entrepreneurial goals and immigration needs.

Long live International Entrepreneur Parole!

About the Author

Fiona McEntee is an Irish immigrant, naturalized U.S. citizen, and the Managing Attorney at McEntee Law Group She is the former Chair of the Media and Advocacy Committee for AILA National, and has been practicing immigration law exclusively for over 17 years. Fiona is regularly featured in national and international media including MSNBC, CNN, and The New York Times She frequently speaks/writes on the extraordinary ability visa and green cards (O-1/EB1A) and on immigration options for startups. Fiona is also the author of “U.S. Immigration Options for Startups: Accelerate Your American Dream” and “Our American Dream,” an award-winning children’s book on immigration

Genie Doi, Esq.

genie@avocetlaw com

avocetlaw com

A P-1 Visa Primer

By Genie Doi, Esq.

There are 3 main types of P-1 visas: (1) P-1A for athletes, (2) P-1B for artists, and (3) P-1S for support staff of either athletes or artists. As seasoned practitioners know, USCIS often does not understand its own regulations and adjudicators are prone to send you an RFE that requests evidence for a visa classification that your client is not even seeking If you can grasp the delineations between the various P-1 visa types and subtypes, you will be empowered to respond to those RFEs with a simple excerpt of the applicable regulations and a gentle reminder to USCIS to stay in their lane

NOTE: This article will not discuss who can serve as petitioner of a P-1 petition, as this topic has been addressed in numerous other practice guides as well as USCIS Policy Memorandum 602-0115.1

P-1S: Support Staff

If you have done O-2 visas for essential support staff of O-1B artists before, P-1S visas are identical in form and substance. P1S visas require:

will approve them both at the same time. However, USCIS does not adjudicate P-1 principal and P-1S petitions together; expect your carefully prepared package to get split up in the mail room and sent to officers on opposite ends of the service center or opposite ends of the country If you don’t take my advice and file these petitions concurrently, expect an RFE for the P-1A principal’s proof of valid status

Just avoid the time- and energywasting RFE by making sure that: 2 3 4

The P-1A is already approved at the time of filing the P-1S petition; 1 The requested validity period on Form I-129 matches the validity period granted to the P-1 principal 2. 5

What Kinds of P-1S Positions Are Integral?

The Merriam-Webster Dictionary defines the word “integral” as “essential” or “formed as a unit with

https://www uscis gov/sites/default/files/document/m emos/PED-2015-0609-O-P-Agent-PM pdf

An approval notice for a P-1A athlete or P-1B artist (“P-1 principal”);

1 The position be integral to the performance of the P-1 principal; and 2 Nonimmigrant intent. 3.

Attached to a P-1 Principal

You cannot have a P-1S support staff without already having a P-1 principal approved Many clients (and practitioners) try to file these P-1 principal and P-1S petitions concurrently, thinking that USCIS

2 At the time of this writing, all petitions are filed with the Texas Service Center regardless of the place of employment or location of the petitioner; cases are then transferred to the Vermont Service Center or California Service Center based on the balance of each service center’s workload

You cannot put P-1A, P-1B, and P-1S beneficiaries on a single petition; only a single classification may be requested per petition (i e , file all the P-1A beneficiaries together in a single petition; you’ll need a second petition for the accompanying P-1S beneficiaries)

3 The email notification from the premium processing unit works just as well as the I-797A; I do not recommend simply providing the P-1 principal’s case number with the expectation that USCIS will check their own records for this information

4 Ensure the status end date does not exceed the P-1 principal’s; doing so will lead to RFE and delay your case

the other part ” I turn to the dictionary definition for guidance rather than a regulation or policy memorandum because no helpful guidance beyond the regulations exists. The most context we get regarding the acceptable roles of P1S support staff comes from the agency’s opaque definition provided in 214 2(p)(3):

Essential support alien means a highly skilled, essential person determined by the Director to be an integral part of the performance of a P-1, P-2, or P-3 alien because he or she performs support services which cannot readily be performed by a United States worker and which are essential to the successful performance of services by the P1, P-2, or P-3 alien Such alien must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such support to the P-1, P-2, or P-3 alien.

By distilling these two very long sentences into discrete elements, we arrive at the precise USCIS definition of “integral”:

Are highly skilled redundant in light of the “critical knowledge” requirement below Essential integral and essential mean the same thing, so this is not helpful

Integral again, they use the word they’re trying to define in order to define it, so not helpful.

Performs support services which cannot readily be performed by a U S worker

Essential to the successful performance there they go again, using the word they’re trying to define in order to define it!

Must have appropriate qualifications to perform the services basically the same as being “highly skilled” or having “critical knowledge ”

Critical knowledge of the specific services to be performed

Experience in providing such support to the P-1 principal

By ridding the regulations of redundancy, we can see that USCIS considers a beneficiary qualified for a P-1S visa if they:

Perform support services which cannot readily be performed by a U S worker

I have successfully obtained P-1S approvals for a wide range of support staff, from chefs and makeup artists to coaches and social media managers, graphic designers, and business executives; the possibilities are endless, provided you can show by a preponderance that the applicant is integral to the P-1 principal by virtue of satisfying the above 3 criteria.

Prior Experience with the P-1 Principal

The longer the P-1S applicant has been associated with the P-1 principal, the stronger the case you have. It does not matter if the P-1S applicant is a Tony Award-winning conductor if they have not performed with the P-1B orchestra before, they are not qualified for the P-1S visa You’re better off pursuing an O-1 for highly sought-after professionals like coaches and conductors who have never worked with the P-1 principal in the past.

Notably, the regulations do not require minimum experience I have been able to get petitions approved for coaches and team managers with as little as 1-3 months’ direct experience with the P-1A athlete To overcome RFEs, practitioners should provide a detailed

testimonial letter signed by the P-1 principal in addition to corroborating evidence explaining how and why a person they have only worked with for a short period of time has quickly become so integral to their craft

Critical Knowledge or Skill

Submit a resume, curriculum vitae, and other documentation, such as news articles or certifications, showing that the applicant is skilled in the support services provided to the P-1 principal For example, if the applicant is a chef, perhaps they have graduated from culinary school or have food handling certifications; if the applicant is a stylist, perhaps they do not have a degree or certification in fashion but have been personally managing the P-1 principal’s wardrobe for the past 10 years

Occasionally, P-1S applicants lack a specific skill that can be bolstered by education or professional experience For example, if a parent is accompanying their minor child who is training and competing in the XGames, the applicant can meet this criterion by showing critical

https://www merriamwebster com/dictionary/integral

knowledge of the services to be performed. In this case, the P-1 principal should provide a detailed testimonial letter describing the type of knowledge the P-1S applicant possesses by virtue of their parentchild relationship

Services Not Readily Performed by a U.S. Worker

This criterion is the most difficult to prove but also the least enforced by USCIS. However, with the incoming Trump Administration, be prepared to proactively address this requirement through a detailed testimonial letter from the P-1 principal declaring that the applicant’s duties are not readily performed by a U S worker due to their pre-existing relationship a personal relationship that no other U S worker possesses This is one reason why it is critical that the P-1 principal and P-1S applicant have prior experience working together.

Other forms of evidence include job postings (or evidence of the lack of satisfactory job applicants), consultation letters from labor associations, league rules indicating that already-submitted rosters of support staff may not be altered after a certain date or expert testimony from industry insiders. 7

Nonimmigrant Intent

Unlike P-1 principals, P-1S applicants are not afforded dual intent and may be denied status extensions or visa issuance if they signal immigrant intent through a pending or approved immigrant petition or have a U S citizen spouse.

P-1B: Artists

This section will only discuss P-1B internationally recognized artists and not their P-2 (reciprocal exchange program) or P-3 (culturally unique) counterparts.

P-1Bs Are Easier Than O-1Bs

Where O-1B visas are meant for individual artists of extraordinary ability, P-1Bs are geared towards performing groups like rock bands or dance troupes who have international recognition. The degree of skill or achievement expected of P-1B artists is lower compared to that of an O-1B artist; rather than needing to show the applicant has reached the pinnacle of their art, P1Bs need only show they have an international reputation by meeting 2 out of 6 regulatory criteria :8

Has performed and will perform as a starring or leading entertainment group in productions or events that have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements; 1 Has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material;

The 75% Rule

3. Has a record of major commercial or critically acclaimed successes as evidenced by such indicators as ratings; standing in the field; box office receipts, record, cassette, or video sales; and other achievements in the field as reported in trade journals, major newspapers, or other publications;

Has performed, and will perform, services as a leading or starring group or organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

4 Has achieved significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field Such testimonials must be in a form that clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or

Evidence that the group has either commanded a high salary or will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field as evidenced by contracts or other reliable evidence

Documenting a performing group’s satisfaction of at least 2 of the above 6 criteria is straightforward The most complicated part of preparing a P-1B petition for a performing group is the math involved at least 75% of the beneficiaries must have been performing together for at least 1 year. If you’re representing a 4member band that has been together for decades and only recently replaced their drummer, the math is not too difficult; however, when representing a 40-member orchestra, break out the spreadsheets and verify each member’s start date with the orchestra by reviewing contracts and/or playbills 9

To illustrate using the the 40-member orchestra example:

Royal Wizarding Orchestra of Scotland

Name Role

Date Over 1 year? 1 Albus Dumbledore Tuba 2/4/2024 no 2 Harry Potter Pianist 10/27/2024 no

3 Ron Weasley Viola 6/29/2024 no

4 Parvati Patil Violin 7/4/2024 no

5 Hermione Granger Cello 5/18/2024 no

6 Severus Snape Harp 6/26/2023 yes (let’s assume members 7-34 have all been with the orchestra for over 1 year)

35 Seamus Finnigan Trombone 2/21/2024 no

36 Draco Malfoy Trumpet 10/30/2024 no

37 Minerva McGonagall French Horn 1/15/2024 no

38 Cedrig Diggory Percussion 3/25/2024 no

39 Rubeus Hagrid Flute 4/24/2024 no

40 Cho Chang Piccolo 8/30/2024 no

Each petition can be filed with up to 25 beneficiaries (i e , you can only cover 25 beneficiaries with a single set of filing fees) In the 40-member orchestra example, practitioners must prepare 2 separate I-129 petitions, and client will need to pay 2 sets of filing fees 9

To qualify for the P-1B designation, at least 75% of the Royal Wizarding Orchestra of Scotland members must have been with the group for at least 1 year (0 75 x 40 = 30) Eleven of the group have not spent at least 1 year with the orchestra (40 - 11 = 29) In this case, the group would not qualify for P-1B status because less than 75% of the group has performed together for at least 1 year. You can remedy this situation by adding a long-time member to the petition, cutting a new member, or leveraging one of the 3 exceptions explained below

Exceptions to the 75% Rule

There are three notable exceptions to the 75% rule:

Circus acts (e g , Cirque du Soleil). 1

Nationally known entertainment groups (e g , National Ballet of Ukraine, Vienna Chamber Orchestra, etc )

3. 10

Exigent circumstances (e.g., the entire woodwind section of the orchestra comes down with COVID and needs to be urgently replaced).

Beneficiaries are replaced at the consular level, not on the USCIS petition

Winter Olympics), theatrical ice skaters are members of performing groups like “Disney on Ice ” If an ice skater has a contract with a theatrical ice skating production, the contract alone will be sufficient qualifying evidence to obtain P-1A status.

Professional Athletes

P-1A: Athletes

And now, we finally arrive at the most complex iteration of P-1 visas: the athletes There are 4 types of P1A athletes:

ice skaters.

Theatrical Ice Skaters

Distinct from competitive ice skaters (the kind you see competing in the

In the P-1A visa context, “professional athlete” is a term of art that should not be used to describe any athlete who competes for a living Rather, to USCIS, a “professional athlete” is one who has an employment contract with a major league team. A major league team is defined as one that: 11

Is a member of an association of six or more professional sports teams; 1 Whose total combined revenues exceed $10 million per year; and 2. The association governs the conduct of its members and regulates the contests/ exhibitions in which its member teams regularly engage 3.

In cases where the beneficiary is signed to a major league team, the existence of a signed employment contract will suffice to establish eligibility

However, USCIS does not easily confer “major league” status upon just any sport that can satisfy the above 3 criteria; if trying to argue that a client’s sport is a major league, expect an RFE requesting tax returns and private financial documentation of not only the league but each member team of the league For practical reasons, 12

obtaining such financial documentation to establish the $10 million revenue figure is prohibitive According to the USCIS website, only the NHL, MLB, NFL, NBA, and MLS are considered major league sports for determining filing locations, but in practice, the NHL, MLB, NFL, NBA, and MLS are the only major league sports USCIS acknowledges for approving P-1A professional athlete petitions 13

A P-1A professional athlete may also be signed to the minor league roster affiliated with the major league team

11 https://www uscis gov/sites/default/files/document/f oia/P-1VisaProgram-RepresentativeStrickland pdf 12 https://www uscis gov/i-129-addresses 13

Amateur Athletes or Coaches

This particular category of P-1A is likely only utilized by amateur Canadian hockey players Players and coaches for such teams can qualify for a P-1A visa provided that the foreign league:

Consists of 15 or more amateur sports teams; 1 Makes participants temporarily or permanently ineligible for scholarships or collegiate competition under NCAA rules; 2 Is the highest level of amateur performance of that sport in the relevant foreign country; and 3 A significant number of the league's players are drafted by a major league sport or its minor league affiliate

This author knows of no other amateur sport that meets these requirements 14

Internationally Recognized Athletes/Teams

Where O-1A visas are meant for individual athletes of extraordinary ability, internationally recognized P1A athletes or teams, need only show they have an international reputation by meeting 2 out of 7 regulatory criteria :15

Evidence of having participated to a significant extent in a prior season with a major United States sports league;

Evidence of having participated in international competition with a national team;

Evidence of having participated to a significant extent in a prior season for a U S college or university in intercollegiate competition;

4. A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized;

A written statement from an official of the governing body of the sport that details how the alien or team is internationally recognized;

5. Evidence that the individual or team is ranked if the sport has international rankings; or 6.

Evidence that the alien or team has received a significant honor or award in the sport

Each of these criteria deserves its own explanation. In recent months, I have found that adjudicators will issue RFEs for dubious reasons that cannot be ignored

(a) Evidence of having participated to a significant extent in a prior season with a major United States sports league.

Separate and distinct from the agency’s definition of “major league” employed in administering P-1 professional athlete visas, USCIS has issued a policy memo clarifying that in the context of meeting this specific criterion for P1A visas, the definition of “major United States sports league” is one that “has a distinguished reputation commensurate with an internationally recognized level of performance ” What does that mean? Factors USCIS will consider include:

The level of competition in the league is such that it would not be able to remain competitive without the services of at least some internationally recognized caliber athletes.

Whether the league has stratified levels of competition (i e , majors and minors)

A pattern of participation by internationally recognized athletes

Level of viewership, attendance, revenue, and major media coverage. International ranking of athletes participating in the league Documented merits requirements for league participants

Someway, somehow, USCIS turned the very simple phrase “major league” into a word salad that folds in on itself and spits out confusion. I think what they are trying to say but failing to say well is:

If your player has participated in the sports league before; and 1 That sports league is not the NHL, MLB, NFL, NBA, or MLS; but 2 The league: 3.

(a) Is the highest level of

competition for the sport; b Already has some internationally recognized/ranked players; c. Has high levels of viewership, attendance, revenue, or media coverage;

4. Then your player just may well satisfy this criterion

(b) Evidence of having participated in international competition with a national team

Provide evidence of the player or team participating in a “World Cup” or Olympic-type event which pits countries against countries rather than commercial teams

(c) Evidence of having participated to a significant extent in a prior season for a U S college or university in intercollegiate competition

Provide evidence of the player having been on a competitive collegiate team. The intramural level of play does not count because competition is not intercollegiate The level of collegiate competition need not be NCAA; club sports will satisfy this criterion.

(d) A written statement from an official of the governing body of the sport which details how the alien or team is internationally recognized.

If you know of another amateur sport meeting these requirements, please contact the author!

14 8 CFR 214 2(p)(4)(iii)(B)(2) et seq 15 https://www aila org/library/uscis-issues-policyguidance-on-p-1a-international

Ask your client if the league or tournament organizer is willing to sign a detailed letter explaining how the athlete or team satisfies at least 2 of the 7 criteria. I also recommend throwing in an explanation of why the competition requires the participation of internationally recognized athletes or teams (more on that later).

A written statement from a member of the sports media or a recognized expert in the sport which details how the alien or team is internationally recognized.

Significant honors can include MVP Awards, breaking records, or otherwise being recognized for outstanding performances. In a team context, even top placements in major tournaments will suffice.

Conclusion

And there you have it! While there are many iterations of the P-1 visa, get in the right lane and stay there so as not to conflate requirements and policies across visa types, which USCIS is prone to do. Tell USCIS which lane you’re in and what the

Print out articles about the athlete or team that describe their athletic achievements and renown If there are none, utilize the governing official’s letter (assuming they are a recognized expert in the sport) to also meet this criterion. If you don’t have a letter from a governing official, ask your client if a scout, former coach, or mentor would be willing to sign a detailed letter explaining how the athlete or team satisfies at least 2 of the 7 criteria.

Evidence that the individual or team is ranked if the sport has international rankings.

The key word here is that the athlete or team is ranked; they need not be top-ranked. Even a ranking of 99 out of 100 will satisfy this criterion as long as the ranking is international in scope. Include a description or explanation of the ranking system or official rules, as well as clear documentation showing that the rank is not regional or national, but international 17

Evidence that the alien or team has received a significant honor or award in the sport.

requirements are in your cover letter. Do your best and let USCIS do the rest sometimes this means swift approval, and at others, this means explaining North American geography to the U S Citizenship and Immigration Services (see footnote 17)

I have received multiple RFEs dismissing this criterion on behalf of my clients because their ranking was North American I had to respond to USCIS with pages from the dictionary and encyclopedia explaining that North America is an international region comprised of Canada, the United States, and Mexico 17

If petitioning an individual athlete, USCIS will not allow you to use the team’s achievement of a 1st place prize at a major tournament as the individual athlete’s significant honor or award

About the Author

Genie is Managing Attorney at Avocet Law where she provides fast, responsive, and results-driven immigration counsel to the world's most talented people: from chefs to cybersecurity specialists, esports players to drift drivers, dog photographers and composers and

everything in between, Genie loves connecting with her extraordinary clients and navigating them through the ever-changing landscape of U.S. immigration law She is an active member of the American Immigration Lawyers Association and Esports Bar Association and frequently speaks on O-1 and P-1 visa issues across the nation

NEW GREEN CARD HOLDERS

STATE OF RESIDENCE [2023]

(Ranked by State of Residence in 2023)

Source: dhs.gov

STANDINGUPIN STANDINGUPIN FEDERALCOURT: FEDERALCOURT:

A CONVERSATION WITH SHABNAM LOTFI, ESQ.

As featured in Episode 363 of the Immigration Lawyers Toolbox® Podcast

Disclaimer: This article is adapted from an audio interview The original conversation has been edited for clarity, flow, and readability, but efforts have been made to maintain the integrity of the speaker’s message

A Voice from the Frontlines

When immigration law makes headlines, it’s often tied to sweeping policy changes, controversial executive orders, or heartbreaking stories of families torn apart But behind those headlines are attorneys boots-on-the-ground advocates who fight every day to make the system work for their clients.

One of those attorneys is Shabnam Lotfi, Esq., founder of Lotfi Legal LLC in Madison, Wisconsin. As both a firstgeneration immigrant and a nationally recognized immigration lawyer, Shabnam has built a practice rooted in empathy, collaboration, and fearless advocacy. In Episode 363 of the Immigration Lawyers Toolbox® Podcast, host John Q Khosravi, Esq sat down with Shabnam for a wide-ranging conversation about community, technology, marketing, lifelong learning, and the importance of showing up when it matters most even if it means taking on the federal government

Background: Shabnam’s Practice

John: For those who might not know you, can you recap a bit about your office and the types of cases you handle?

Shabnam: I live in Madison, Wisconsin That’s the State Capitol behind me I’ve been here almost 20 years, and I’ve been doing immigration law for 10 We’re a fullservice immigration firm employment, asylum, removal, family, naturalization, and lately, a lot of litigation

John: That’s a lot of ground to cover. How do you manage all of that?

Shabnam: We’re small six of us: three attorneys, two paralegals, and a legal assistant But everyone loves the work. We all touch every case. There are no office politics It’s supportive, and it helps bring out everyone’s best.

John: Are you all working in person?

Shabnam: Yes, we’re fully in-person.

John: I’ve been remote the last couple years I miss the speed and connection of working side by side. There’s just something different about being in the same room.

The Move into Federal Litigation

John: I know you from business immigration cases and working with universities But you made headlines for a lawsuit against the Trump administration Were you already doing litigation then?

Shabnam: No, we weren’t. We sued in March 2018 over the sham waiver process under the travel ban. The Supreme Court let the third version of the ban go through in December 2017 That month, we saw blanket

denials People showing up for interviews were denied. People waiting for visa pickups were denied.

By the end of January, Senator Van Hollen’s office reported that zero waivers had been issued to over 6,000 individuals That was our red flag

We also had a consular officer provide a declaration on how the ban was being implemented When you see injustice, you have to stand up

The big organizations were dealing with family separation at the border But we thought, worst case, we get kicked out of court. It was worth the fight

Litigation Logistics and Support

John: That sounds intense Filing in federal court isn’t easy motions, procedures, the whole system What about the costs? Did you need to travel?

Shabnam: After filing, we partnered with Muslim Advocates. They had more experience with litigation Then another group filed a similar case in Seattle Eventually, the two cases were combined.

We had an incredible team big firms, small firms, nonprofits Everyone brought what they could. Paralegals helped cite check briefs the night before deadlines Without that support, I don’t think we could’ve done it

The Government Pushback

John: I’ve heard these cases can cost millions Even if you win, they just stall. What happened in your case?

Shabnam: The government filed a couple motions to dismiss. Both were denied Then they dragged out discovery. That became a pattern in all our later lawsuits

It’s just their approach obstruct, delay, drag it out.

John: Did the court ultimately side with you?

Shabnam: Yes We filed motions for summary judgment, and in 2022, the court sided with us But we had to fight for another two years just to get relief The State Department argued that only the named plaintiffs should get relief As if seven years of litigation was just for five people.

We eventually secured prioritized visa interviews for 25,000 class members at 20 key embassies. That program is open until August 13, 2025.

John: If someone was denied under the first travel ban and didn’t have a second interview, they could qualify?

Shabnam: Yes There’s a process laid out, and we’re here to help.

New Lawsuits and Bigger Goals

John: Are you still doing litigation?

Shabnam: Yes, we do mandamus lawsuits for delays, but the dream is a class action for everyone stuck in administrative processing People follow every rule, pay fees, attend interviews, and still have to sue It’s not fair

We also filed a class action for those denied visas due to mandatory IRGC conscription These are people who were forced into service decades ago and are now being punished

The team behind Lotfi Legal LLC

Protecting the Community

John: With everything going on, what are your clients most concerned about now?

Shabnam: Citizenship. Green card holders want to naturalize Those abroad want visas. People are scared Even citizens worry about losing their status.

“We tell everyone: don’t panic. Know your rights. Removal is a long process. Even if you're placed in proceedings, it's not immediate. There’s due process. You have time. You have rights.”

We educate people about warrants too If it’s not signed by a judge, you don’t have to open the door. You have the right to remain silent That kind of knowledge makes all the difference

John: Thanks so much for coming back on the show, Shabnam. Your work is making a difference

Shabnam: Thank you We love standing up for the community We work with a coalition of individuals each week in preparation for any future iteration of a travel ban.

You're not alone. It's not personal —what’s happening isn’t about any one individual. The world is in chaos right now, but we’re in this together.

How to Contact Shabnam Lotfi, Esq.

�� Law Firm: Lotfi Legal LLC

�� Email: info@lotfilegal com

�� Website: www lotfilegal com

�� Instagram & LinkedIn:

@ShabnamLotfi

�� YouTube & Podcast

Features: Search "Shabnam Lotfi"

The Evolving Landscape of Immigration Law: A Call for Adaptability and Resilience

By Flavia Santos Lloyd, Esq.

Flavia Santos Lloyd, Esq.

flloyd@santoslloydlaw com

www.santoslloydlaw.com

Our field is stressful. Demanding. Unfair Highly political Less profitable than other areas of the law And the list goes on However, we keep doing it. We just love it. Immigration practitioners fight the good fight in a field that remains one of the most dynamic and complex areas of legal practice, shaped by shifting political priorities, judicial interpretations (or misinterpretations), and bureaucratic processes As immigration lawyers, our ability to adapt to this evolving landscape is not only crucial to our clients' success but also to the sustainability of our practices. From navigating policy changes to managing unique challenges within the profession, adaptability has become the cornerstone of effective immigration lawyering

Navigating Shifting Political Priorities

Changes in administration often bring dramatic shifts in immigration policy The new administration has clearly stated that it will be bolder, more extreme and more challenging to practitioners and their clients than any other administration Threats to DACA, TPS, increase in PERM audits, no deference to prior USCIS adjudications, interviews in all types of cases, travel restrictions, are just a few of the myriad of changes that are on the horizon

To remain effective, immigration lawyers must not only stay abreast of these changes but also anticipate their ripple effects on adjudication and case strategy. ABA Model Rules 1 1, state that a “lawyer shall provide competent representation to a client” and while the constant change will be even more daunting 1 to an already complex area, it’s

imperative that lawyers do not let the uncertainty and the stressors of the new administration affect their knowledge base

Therefore, regular participation in CLEs, staying active in organizations like AILA, Immigration Lawyers Toolbox, Facebook groups, are essential tools for staying informed and adaptable After all, information and knowledge are key factors for effective representation

Adjudication and Processing Times: A Moving Target

Immigration attorneys have become all too familiar with unpredictable and often prolonged processing times Case backlogs at USCIS, EOIR, DOS, DOL, and other agencies force lawyers to provide creative solutions for clients whose lives and livelihoods hang in the balance The unpredictability will increase in the near future.

https://www americanbar org/groups/professional r esponsibility/publications/model rules of profession al conduct/rule 1 1 competence/#: :text=A%20la wyer%20shall%20provide%20competent,reasonably %20necessary%20for%20the%20representation

In this environment, adaptability means leveraging technology for case management This is where workflows in the firm’s software demand a tune up every six months Having a scheduled audit every six months of processing times is crucial because one can automate the tasks of when to timely follow up on case The time saved with automation could create room to address actual cases matters and issues. The key here is to balance ethical responsibilities with the need to run a profitable business after all following

up on a case too late could have devastating consequences to a matter

The Importance of Effective Communication

According to the ABA, one of the most common disciplinary complaints filed against lawyers is for lack of communication. Practitioners will be busy fighting, arguing, and advocating for their clients, but they will not respond to emails, return phone calls or give the customer service vulnerable immigration clients need. The rapidly changing nature of immigration law underscores the importance of clear and proactive communication with clients. Whether explaining the potential impact of new policies or setting expectations about delays, lawyers must navigate these conversations with empathy and precision.

Thus, again, leveraging technology is key here Being adaptable also means embracing new methods of communication, such as client portals, webinars, automated emails, text messages, and multilingual outreach, to ensure that information is accessible and timely A monthly or quarterly status email or text to a client will provide good customer service to clients, reduce anxiety and save the practitioner money by having less phone calls and emails demanding the status of their case Moreover, the practitioner would also have determinative proof that ongoing communication with their clients is actually taking place.

Tracking Time

While immigration often involves a substantial amount of non-billable work, tracking time is crucial in a law firm regardless of whether or not the work is done on a flat-fee or hourly basis This may be a bit controversial to some, but accurate time tracking is vital for billing, business sustainability and even ethics. It can also serve as a diagnostic tool for identifying inefficiencies in practice management For example, tracking

the time spent on various case types can help firms determine where to allocate resources or adjust legal fees

Additionally, when a client wants a refund, or demands an explanation of the work that has been done, or just basically wants to understand why the case took so long to be filed, it is crucial to have an accurate bill detailing the time spent and the work done on a case

https://www americanbar org/news/abanews/publi cations/youraba/2022/0307/protect-yourself-fromcomplaints/

Time spent on pro bono cases, community outreach, and policy advocacy is essential but can strain resources and must be budgeted on a monthly basis. By tracking time and budgeting it, the practitioner will be able to do meaningful work, but at the same time, making sure that they stay within a margin of profitability

Attorneys must balance these demands by streamlining operations and finding efficiencies where possible. Technology can play a key role here, whether through practice management software, automated form generation, or the use of AI for research and drafting. Finally, remember: you can’t manage what you don’t measure

Strategies for Resilience and Growth

updated on policy changes and access valuable resources, including sample briefs, practice advisories / pointers, and networking opportunities.

3. 4.

Focus

on Professional Development: Encourage attorneys and staff to attend CLEs, webinars, and workshops on emerging trends and best practices. If budget is an issue, develop your own internal programs. Staff will demand more knowledge in order to be able to provide adequate client support

Prioritize Self-Care: The emotionally charged nature of this work can lead to burnout. Implementing wellness initiatives and maintaining a work-life balance are essential for long-term sustainability

Conclusion

The evolving nature of this practice area demands resilience, creativity, and adaptability from practitioners. By embracing change, leveraging technology, and addressing the unique challenges of the profession, the immigration bar can continue to provide exceptional service to their clients while navigating an increasingly complex, harsh and hostile legal landscape.

About the Author

Invest in Technology: Practice management software, client portals, and AI tools can help streamline operations, reduce administrative burdens, and improve client experiences

1. Build a Strong Support Network: Engage with professional organizations such as AILA, Immigration Lawyers Toolbox, Facebook groups, etc , to stay

Flavia Santos Lloyd, with 21+ years in immigration law, is the Founder and Managing Attorney of Santos Lloyd Law Firm, PC. She is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Specializing in extraordinary ability cases, she leads 14 attorneys and 40+ staff Also an educator, she teaches law and contributes to scholarly work nationally and internationally.

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The Overlooked Pitfall of Automatic Citizenship: INA 320 and Passport Revocations

By Anna Sergeeva, Esq.

Anna Sergeeva, Esq.

Anna@JQKLaw com

JQKLaw.com

Imagine this: you are a U S citizen on vacation overseas, and your U.S. passport gets stolen The U S embassy tells you they cannot issue a new passport without proof of citizenship. The problem? Your only proof was your U S passport Since you were born outside the U.S., you don’t have a U S birth certificate All your life, you only had a U S passport, which you kept renewing.

Here is another one: you are a U.S. citizen, and you have spent your entire life living abroad You noticed that your U.S. passport expires soon You get to the U S embassy to renew it only to find out that your passport is being revoked The reason? According to the embassy, you never obtained your U.S. citizenship properly.

Both are true stories that could have been avoided if the clients had had a Certificate of Citizenship. Perhaps their parents chose not to invest in obtaining the certificate, or they relied on legal advice that deemed it unnecessary. However, as time goes by, obtaining a Certificate of Citizenship becomes increasingly challenging due to factors such as the unavailability of crucial evidence, strained or broken childparent relationships, or other unforeseen circumstances.

One is eligible to apply for a Certificate of Citizenship: if they were born outside the United States to a U S citizen parent, or automatically acquired citizenship after birth but before their 18th birthday

Certificate of Citizenship can be obtained based on:

INA 320 (N-600): for children who automatically acquire citizenship after birth while residing in the U.S. with a U.S. citizen parent, or INA 322 (N-600K): for children of U S citizens who regularly reside outside the U.S.

Understanding INA 320

INA 320(a) states:

“A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

The child is under the age of eighteen years.

The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence ” [emphasis added]

In the past few years, we noticed a growing trend of U.S. embassies revoking passports from individuals who received citizenship under INA 320 We see that particular scenario in cases where the U.S. citizen parent did not have enough physical presence in the U.S. to transmit the U S citizenship automatically at birth. Hence, the child was not eligible for a Consular Report of Birth Abroad. In these situations, parents often opt to file immediate relative petitions for their young children, who then enter the U S on IR-2 visas, apply for U.S. passports, and shortly thereafter return abroad The issue arises when "residing" in

the U S a key requirement is not adequately fulfilled before applying for a U S passport If a passport application is submitted shortly after a child enters the United States, the child may not meet the residency requirement for automatic citizenship under INA 320 While passport offices in the U.S. typically overlook this, U S embassies abroad do not. During a passport renewal appointment, embassy officials often ask how long the individual lived in the U S If the response is, "I actually never lived in the U.S.," the embassy may revoke the passport on the grounds that the conditions of INA 320 were not fulfilled

The law is silent on how long a child needs to reside in the U.S. in the legal and physical custody of the U.S. citizen parent to obtain U.S. citizenship automatically It would be safe to say the longer, the better However, it is not only about the length of time, but also about establishing actual residency in the U S attending school, renting or owning a home, seeing a pediatrician or primary care physician, having a job, maintaining a local bank account, paying bills, integrating into the community, and so on. While one individual might be able to establish residency after only three months, another may not, even after being physically present in the U S for six months

To safeguard against future issues, it is wise to document residency and apply for a Certificate of Citizenship after fulfilling INA 320 requirements. As a practical matter, we usually recommend collecting the residence documentation even after approval of the N-600 application

Why Is a Certificate of Citizenship So Important?

It never expires, unlike a U.S. passport When applying for certain jobs, medical coverage or even college, presenting a U.S. passport may not be sufficient It is more secure While a U S passport can be relatively easily revoked by the Department of State, a Certificate of Citizenship is far more difficult to revoke Although revocation is possible, it is rare and involves a more complex and stringent process. It protects against potential policy changes that may make getting a Certificate of Citizenship practically impossible in the future

Do not rely solely on a U.S. passport as proof of citizenship A Certificate of Citizenship offers lifelong security and peace of mind As an attorney, do not advise clients to skip it doing so could result in consequences that affect them for the rest of their lives

About the Author

Anna is a senior associate immigration attorney at JQK Law Firm, headquartered in Los Angeles, CA As a first-generation immigrant from Belarus, Anna is passionate about immigration law. She primarily practices in the

fields of family and employmentbased immigration Before receiving a Master of Laws (LL.M.) degree from William & Mary Law School, Anna obtained her first law degree from Belarusian State University in Minsk, Belarus. Anna is a member of the American Immigration Lawyers Association (AILA) and admitted to the District of Columbia Bar Anna loves playing tennis, dancing, gardening, and going on hikes with her husband and two sons

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I Swear to Tell the Truth—

How to Anticipate, Prevent & Possibly Reverse a 6C Misrepresentation Finding in Consular Processing Cases

By Janice Flynn, Esq.

Janice Flynn, Esq.

janice@flynnhodkinson com

flynnhodkinson.com

As U S immigration lawyers, our job is to protect our clients from being unjustly accused of misrepresentation and if they are, to represent our clients so that they are not permanently inadmissible to the United States

In the practice of immigration law, a finding of inadmissibility under INA section 212(a)(6)(C)(i) can arise if a U S government official makes this determination at a consular interview, at a U S port of entry or Preclearance location, or at a USCIS interview or Service Center decision. As immigration lawyers we need to fully understand our client’s immigration history to determine whether this finding was made correctly. If no decision has been made yet, whether they are at risk of being found inadmissible. It is prudent to assess the case to ensure that the U.S. government official made the decision correctly and whether there is a basis for reconsidering the decision.

To make a finding of misrepresentation against a person seeking entry to the U.S. or a U.S. immigration benefit, under INA section 212(a)(6)(C)(i) all the following elements must be met:

“Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible ”

The Misrepresentation Must Be Material

There may be instances where a

correct finding of misrepresentation is made, but there are instances where it may not be a correct finding For example, this provision only applies to representations made that are material to the inquiry being made which is usually whether a person should be granted a U.S. visa or admitted to the U S The U S Supreme Court developed a test that sets out if the fact would lead a U.S. immigration officer to find them to not be entitled to the immigration benefit, then it is material If a consular officer asked a visa applicant whether they intended to go to Disney World when applying for a visitor visa and then proceeded to go to the Grand Canyon, this misrepresentation would not be material as the point of the consular officer’s question was to determine the nature of the activity the visa applicant intends to engage in, to determine that they meet the requirements for the B-1/B-2 visitor visa which requires that someone is going to the U.S. for the purpose of tourism or business meetings or conference.

It gets a bit more complicated if your client has a criminal issue such as a U.K. caution for drug possession from 2003 Is a visa applicant obligated to disclose this caution? This goes to whether there is a material misrepresentation because to be inadmissible a person must have been convicted of the offense. A U K caution issued prior to June 2008 did not require an admission of guilt, and it is not considered to be a conviction Simple cautions issued after June 2008 are considered convictions and will make someone 2

For a discussion of materiality see, Chapter 3Adjudicating Inadmissibility | USCIS Section E

1 See 9 FAM 302 3-2(B)(3)(a) for definition of a conviction

inadmissible to the U S and crucially, if the visa applicant is applying for an immigrant visa, there is no waiver available for possession of controlled substances unless it is 30 grams or less of marijuana This distinction is determinative if you are preparing a client for a visa interview in a consular post or applying for entry at a U.S. port of entry not familiar with U K cautions 3

In practice, it is advisable that the client discloses all criminal history even if it is not material, so a U S immigration officer or consular officer cannot make the finding that it would have been helpful to be aware of the finding especially, as offenses that may seem like they would not make a person inadmissible such as a drink driving conviction which is not a crime involving moral turpitude but a finding of inadmissibility on health grounds may be made in this instance depending on the recency of the alcohol or drug-related conviction.

Ways to Contest the Misrepresentation Findings and Have It Overturned Based on Case Law and the FAM

In 20 years as an immigrati lawyer, I have been able to tu around a finding misrepresentation twice, so it is n an everyday occurrence, but ramifications of a misrepresentati can be catastrophic. If your cli has been found to be inadmissi based on 212(a)(6)(C) as lawyers, should scrutinize these findings they can and should be turn around when they are made in err Both times they have been turn around were at U S consular pos and the response was that decision was “inadvertent” or “th was a misunderstanding” and they were turned around The mo is that consular officers are hum too and our job is to clear up a confusion that may have led to wrong decision

One of the cases where misrepresentation finding turn around involved an Irish wom who wished to visit the U S af serving a 10-year bar hav established a residence with h American husband in Ireland dur that time She had no intention ever living in the U.S. and j wanted to have the ability to visit h in-laws at some point. When she w in her early 20s, she visited the U and her situation changed after s entered resulting in an overstay more than a year which triggered

a 10-year bar once she left the U S

She was aware of her youthful error, and now that she was more mature,

represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that their intentions were misrepresented at the time of either the visa application or application for admission to the United States To conclude there was a misrepresentation, a consular officer must make a finding that there is direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion and is akin to probable cause See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013) If the activities happened within 90 days after the visa application and/or application for admission to the United States (typically you are looking at activities after entry into the United States), see paragraph (2) below regarding the 90-day rule ” Based on the lack of circumstantial evidence in this case, the consular officer who interviewed the visa applicant made a finding of inadmissibility based on his mere suspicion that she intended to stay in the U S permanently when she requested entry to the U.S. Based on this argument, the U S Embassy in Dublin removed the finding of inadmissibility

What Is the 30-60-90 Rule and Does It Really Exist?

The 30-60-90 Day Rule Explained

The 30-60-90 day rule is not quite a “rule” but a guideline used by U.S. immigration authorities, particularly the Department of State, to evaluate whether a non-immigrant visa holder misrepresented their intentions when entering the United States The rule is not a hard and fast law but serves as a framework to assess whether an individual violated the terms of their visa by engaging in activities inconsistent with their stated purpose upon entry

Breakdown of the Rule:

Within 30 Days: If an individual engages in activities inconsistent with the terms of their visa within 30 days of entry, such as getting married or applying for a change of status, it is presumed that they misrepresented their intentions at the time of entry This assumption of misrepresentation can lead to the denial of future visa applications or adjustment of status

Between 30 and 60 Days: If inconsistent activities occur between 30 and 60 days after entry, there is no automatic presumption of misrepresentation. However, immigration authorities may request additional evidence to justify the change in behavior or intentions. The applicant must demonstrate that the change was not premeditated at the time of entry

After 60 Days: Actions taken after 60 days are generally not viewed as misrepresentation. It is assumed that any change in intent, such as marrying a U.S. citizen or applying for a different visa status, developed after arriving in the country, indicating no initial intention to deceive immigration officials.

The U S Department of State (DOS) and U S Citizenship and Immigration Services each use this guideline but with slightly different interpretations. DOS uses it to identify potential cases of visa fraud or misrepresentation where the USCIS does not strictly apply the 90-day rule but considers the overall context of each case USCIS may look at factors such as the timing of actions, the individual's intent upon entry, and any changes in circumstances 4 5

In summary, it is important for visa holders to be aware of these guidelines and to ensure that their actions align with the stated purpose of their visa to avoid complications in their immigration process Equally important is that visa applicants are well educated before attending visa application interviews on the elements of a misrepresentation finding to avoid erroneous findings that can be devastating. Most importantly, even if a finding was made under our watch, we must not accept a misrepresentation finding if it does not meet all the elements of INA 212(a)(6)(C)

3 9 FAM 302 9-4(B)(3) (U) Interpretation of the Term Misrepresentation https://fam state gov/fam/09FAM/09FAM030209 h tml

4 USCIS PM Vol 8, Part J, Ch 3 Adjudicating Inadmissibiity (Section A 2) https://www uscis gov/policy-manual/volume-8part-j-chapter-3#S-D

About the Author

Janice Flynn is the Managing Partner at Flynn Hodkinson, a Londonbased U S visa and nationality law firm, where she has been practicing since 2005 Originally from Chicago, Illinois, she is a recognized authority in U S immigration law, specializing in consular processing, U.S. entry issues, loss of citizenship and loss and maintenance of lawful permanent residency, and non-immigrant waivers of inadmissibility.

Ms Flynn actively contributes to the legal community as a member of AILA’s CBP National Liaison Committee, the Chair of the Rome District Chapter’s Government Liaison Committee, and a former Executive Committee member of the Rome District Chapter. She regularly advises multinational corporations and investors on U.S. visa options, leveraging her extensive experience to navigate complex immigration challenges

Navigating ImmigrationReform:

AGUIDEFORLAWFIRMS

Changeisconstantinimmigrationlaw, demandingproactiveadaptationfromlawfirms This isespeciallytrueaswemoveinto2025,withongoing shiftsinpoliciesandenforcement

Sowhatcanimmigrationlawfirmsdotoprepare?Thisguide provideskeystrategiestonotonlysurvive,butthrive,inthiswildride. Whilenoneofuscantrulypredictwhatwillhappenthroughoutthenext year,theseareourbesthunches.

KeyTrendsand2025Considerations

Current trends point towards continued emphasis on border security, enforcement, and potentially increased scrutiny of visa applications. We also see a continued push for skilled worker visas and a focus on economic contributions The two of those come into contrast at some level, so the repercussionsofanydecisions,eventhesmallestones,willbemonumentalandrequireadaptability

Lookingaheadto2025,severalfactorsarelikelytoshapethelandscape:

•Technological Advancements in Enforcement: Expect further integration of technology in border control and immigration processing, potentially impacting application timelines and procedures

Biometricsanddataanalyticsarelikelytoplayanevenlargerrole

•ShiftingPoliticalLandscape:Electionsandpotentialchangesinadministrationcouldleadto significantpolicyshifts,requiringfirmstobepreparedforbothrestrictiveandmorelenient approaches

•EconomicFluctuations:Economicconditionscansignificantlyinfluenceimmigrationpatternsand policies Firmsshouldmonitoreconomicindicatorsandprepareforpotentialshiftsindemandfor differentvisacategories

TheImpactonLawFirms

These changes in immigration law present a complexdualityofchallengesandopportunitiesfor lawfirmsspecializinginthisarea.

Thesheervelocityofchange withfrequent updatestostatutes,regulations,agency interpretations,andenforcement priorities demandsanunprecedentedlevelof vigilanceandasustainedcommitmentto professionaldevelopment Firmsmustnotonly trackformallegalpronouncementsbutalso anticipateshiftsinagencypractices,processing times,andenforcementstrategies Thisrequires asignificantinvestmentinresources,including dedicatedresearchstaff,subscriptionstolegal databases,andongoingtrainingprograms Thisconstantstateoffluxtranslatesdirectlyinto increasedclientdemand,asindividualsand businessesgrapplewithincreasinglyintricate proceduresandpotentiallegalpitfalls Navigatingthecomplexitiesofvisaapplications, deportationdefense,asylumclaims,andother immigrationmattersrequiresspecialized

expertiseandstrategiccounsel,placinga premiumontheskillsofexperienced immigrationattorneys

Thissurgeindemand,coupledwiththeinherent complexityofeachcase,createssignificant pressureonfirmstomaintainbothefficiency andprofitability Effectivelymanaging potentiallyhighercaseloadswhileensuring meticulousattentiontodetailandpersonalized clientservicerequiresoptimizedoperations, streamlinedworkflows,andthestrategic deploymentoftechnology.Firmsmustfind innovativewaystobalancethedemandsof providinghigh-qualitylegalrepresentationwith theimperativetoremaincompetitiveina demandingmarket Thismightinvolveadopting advancedcasemanagementsystems, implementingsophisticateddataanalytics tools,refininginternalprocessesthroughlean methodologies,orexploringalternativefee arrangementsthatalignclientneedswithfirm profitability.

HowCanYouPreparefortheFuture?

Lookingbeyond2025,firmsmustembraceamindsetofcontinuousadaptationandinnovation Thisincludes:

•ScenarioPlanning:Prepareforvariouspotentialpolicyscenariosbasedonpoliticalandeconomic factors

•BuildingStrongRelationships:Cultivaterelationshipswithgovernmentagencies,industry stakeholders,andotherrelevantorganizations.

•InvestinginTechnologyandInnovation:Continuouslyevaluateandadoptnewtechnologiesto enhanceefficiencyandclientservice.

Navigating Transition from E-2 to EB-5

Strategic Consideration in Designing Immigration Strategy for Treaty Investors

By Natalia Polukhtin, Esq.

Natalia Polukhtin, Esq.

natalia@globalpracticegroup com

globalpracticegroup.com

On February 25, 2025, the Trump Administration introduced a “Gold Card” program claiming that for $5 million USD, investors will be able to “buy” a Gold Card with “Green Card privileges” plus a “route to citizenship.” Along with the announcement, the remark was made to suggest that the new program will replace the existing EB-5 Program that has been in place since 1990

perceived as a stepping stone to the green card at a certain point, an investor’s business set up under E-2 may support the transition to permanent resident status through the EB-5-direct program However, this transition is not straightforward and requires precise strategizing to ensure smooth navigation from a non-immigrant status to a green card.

What this announcement seemingly fails to recognize is that the EB-5 Reform and Integrity Act of 2022 (“RIA”), enacted in March 2022, includes a grandfathering provision that safeguards investors who participate in the EB-5 Regional Center program before September 30, 2026, or one year before the EB5 program is set to expire absent Congressional Action. Changing the existing law would obviously require an act of a Congress, thus, there is no cognizable prospects of EB-5 going defunct in the next few years. To the contrary, should the “Gold Card” be brought to co-exist with the program already in place, EB-5 may even grow in popularity as providing a more practical way to utilize investment capital in immigration strategy. Moreover, those foreign investors who already placed their capital with the U.S. based enterprises but have not started immigration process yet, may be prompted by this announcement aimed at raising the investment threshold to $5M to start implementing their strategy while the existing rules are still in place

Both the non-immigrant E-2 visa and immigrant investors’ EB-5 categories allow the benefit of a status based on the investment in a qualifying commercial enterprise Moreover, E-2 is historically

In many cases, E-2 visa holders start inquiring about the possibility of converting their temporary stay in the U S into permanent status when some external factor comes into play It may be an investor’s child coming to the age when the child cannot stay in the U.S. as a minor dependent of the primary visa holder It may be a stage when the investor disposed of the assets and liquidated a business abroad and is ready to establish a tax resident status in the U S In the situation of political instability and rapid changes in immigration laws and regulations, many E-2 visa holders appreciate the convenience of the permanent resident status not dependent on uncertainties of visa processing and travel restrictions Unfortunately, for many successful entrepreneurs, not every E-2 enterprise can be easily converted into EB-5 Among other factors to consider in the assessment of the feasibility of the transition are the capacity of the E-2 enterprise to create requisite employment, availability of the source of funds documents, and possible opportunities to leverage E-2 capital to expand the funding

See 8 U S C § 1153(b)(5)(E) and 8 U S C § 1153(b) (5)(S) 1 Job Creation Capacity of the Business

E-2 is a temporary non-immigrant

visa based on a reciprocal treaty between the United States and the individual’s country of nationality that allows a citizen of an E-2 treaty country to be admitted to the U.S. “to develop and direct the operations of an enterprise in which the applicant has invested a substantial amount of capital.”2

The basis for the issuance of an E-2 visa an investment of personal capital is very similar to the definition found in EB-5 regulations For the purpose of E-2, the term “investment” is defined as the placement of the capital, including funds and assets, by the investor into the commercial enterprise at risk and with the goal of generating profits. However, compared to the EB-5 category, regulations governing E-2 visas do not prescribe a minimal amount of investment capital and do not have a distinct job-creation requirement, making this visa an attractive option for small businesses or foreign investors willing to “test” the U S business environment without accepting full tax liabilities of permanent resident status 3

This lack of the prescribed requisite investment amount that makes E-2 attractive for foreign investors, creates certain impediments once the investor starts entertaining the idea of reaching for the permanent option. Usually, the E-2 enterprise with a modest capitalization budget is structured to support only a limited number of full-time employees and, thus, may be more difficult to scale up to meet the EB-5 job creation requirement.

It is not uncommon for E-2 businesses to manage their payroll liability by hiring people part-time or engaging independent contractors for certain duties all practices unacceptable for EB-5. Hiring 10 or more permanent full-time workers may be commercially non-feasible for a small business or even not consistent with the practice of a particular trade if the industry is susceptible to seasonal fluctuation in the workforce

Moreover, the lengthy adjudication process for EB-5 and the conditional nature of the initial grant of the permanent resident status may create an additional burden for E-2 treaty investors who did not plan for sudden expansion and subsequent mandatory retention of the additional workforce This consideration is also important for E-2 business owners who rely on workers that cannot be accounted for the “headcount” for EB-5 purposes, i e investor’s family

members, or non-immigrant visa holders

Thus, to avoid undue surprise when the failing EB-5 transition strategy results from the inability to create all qualified employment, it is imperative to have a candid conversation with the investor about the enterprise’s financial stability at the very early stages of the business

Addressing Source of Funds Documentation

One of the factors making transitioning from E-2 to permanent resident status difficult is the lack of proper planning of the source of funds documentation at the inception of E-2 enterprise The major condition imposed on the EB-5 petitioners is the requirement that the investment capital be obtained lawfully and clearly attributed to the investor. The EB-5 Reform and Integrity Act of 2022 (RIA) amended and modified requirements for documenting the source of funds for the EB-5 process, placing lots of emphasis on the proper identification and disclosure of the originating sources of the capital used for the investment

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In particular, the law now requires business and tax records or similar records to be filed with form I-526, including tax returns of any kind filed during the past seven years (or another period determined by the DHS) by or on behalf of the investor a modification of the prior regulatory requirement of five years In addition, disclosure of the identity of all persons who transfer funds into the U S on the investor’s behalf is now required. Under the new standard, gifts and loans now have a “good faith requirement” with reference to the disqualification of funds from impermissible sources, including illegal activity Thus, lenders and donors’ records are mandatory in the cases where third parties are involved.

g q s than EB-5, the visa application is not intended to provide an in-depth analysis of the source and trace of funds. It generally limits the scope of documentation to the bare demonstration of the legitimacy of the capital and the cognizable path of the money to the investment enterprise Further, since EB-5 came into place after the E-2 investor spent several years running a business in the U.S., many documents become unavailable or difficult to obtain with the passage of time

Accordingly, it is imperative to assess the full extent of the evidence available for documentation of the source of funds prior to embarking on a journey of converting the E-2 status to the EB-5 to avoid burdensome RFEs at the adjudication stage several months or even years, down the road, when access to the documentation will be even more problematic

Leveraging E-2 Business’ Funds for Immigration Strategy

Finally, in contemplating the transition from E-2 to EB-5-direct business owners rarely take into consideration the implications of extracting the capital from the fully operational business for the purpose of reinvesting it back to preserve compliance with EB-5 regulations Many E-2 visa holders tend to overlook one crucial detail of the EB-5 program the requirement to invest the personal capital of the investor and place it at risk, which effectively precludes counting retained earnings of the E-2 business toward the EB-5 investment amount

As a result, before the invested amount can be considered a qualified

investment, the E-2 visa holder has to make a distribution of profits or dividends payment (incurring respective tax liability) just to return that same capital to the operational budget of his enterprise. This route may be not only costly but also risky for the operational status of the business and potentially nonimmigrant status that depends on the uninterrupted functioning of the enterprise.

These considerations can be accounted for in steering the EB-5 strategy from the direct investment to the placement of the capital with the Regional Center. The obvious advantage of using a Regional Center for EB-5 filing as opposed to converting E-2 into the direct placement of the capital is the lower amount of the required capital. Even though the RIA made a difference in the amount of investment in the Regional Center and direct placement is now not substantially higher than the regional center investment ($800,000 in RCs to $1,050 Million) there is still additional of $250,000 USD that needs to be realized to qualify for the approval of I-526. For the small business, this amount may be significant. Moreover, the cost of payroll that the investor needs to maintain to create 10 direct places of employment makes the entire endeavor even more costly

Another benefit of relying on E-2 enterprise to derive the funds for investment into the Regional Center is the established history of the business dealing of the E-2 visa holder in the U.S. USCIS historically operates on requirements that serve valid government interests preserving the integrity of the EB5 program by confirming that the funds utilized are not of suspect origin. This interest is easily served when the source of funds is documented by the extensive evidence of the operational activity of the E-2 business in the U S and

reflected in the tax returns of the E-2 company or corporation

However, probably the most significant advantage of the transition from E-2 to EB-5 through the investment into the Regional Center is the possibility of using the assets of the E-2 enterprise to collateralize the loan that may serve as a source of funds for the EB-5 investment. USCIS no longer follows its interpretation of indebtedness as including the investment of loan proceeds as of November 30, 2018, the date of the district court decision in Zhang v USCIS et al 8

Nevertheless, the principle governing loans in the EB-5 context remains intact assets of the new commercial enterprise cannot be used to secure any of the indebtedness. Accordingly, even if the investor accumulated significant assets in his E-2 enterprise, a loan obtained with the use of those assets as collateral cannot be used for reinvestment into the same enterprise for the purpose of expansion and further conversion into EB-5-direct At the same time, that same loan proceeds, as long as they are properly secured , can be used for the investment into a Regional Center In Zhang, the court remarkably emphasized that “bona fides of a loan tend to show that its proceeds were lawfully acquired,” thus, making use of these loan proceeds is even more feasible in the EB-5 process

Conclusion

E-2 visa holders with a proven track of entrepreneurship, a clear source of funds, and available capital are excellent candidates for the immigrant investor program, as long as the intricacies of the transition to the EB-5 are taken into consideration at the initial stage of the case assessment As long as an attorney is equipped with the

practical knowledge to recognize potential deficiencies in available evidence of an E-2 treaty investor and is prepared to address them proactively, transition to EB-5 may be a viable and practical option for foreign investors seeking permanent resident status.

Spencer Enterprise Inc v U S , 229 F Supp 2d 1025, 1040 (E D Calif 2001) aff’d 345 F 3d 683 (9th Cir 2003)

7 Zhang v USCIS et al, 978 F 3d 1314 (D C Cir 2020)

8 CFR 204.6(e)

9 Matter of Hsiung, 22 I&N Dec 201, 202-03 (Assoc Comm 1998)

10 Zhang, at 13 11

About the Author

Natalia Polukhtin, attorney at Global Practice (Scottsdale, AZ), specializes in investment immigrant and non-immigrant visa categories

Natalia’s core expertise is documentation of source of funds originating from CIS-countries where tracing the money is never a straight-forward endeavor She published multiple articles on issues of investment immigration, such as integration of cryptocurrency and other non-traditional sources of funds into immigrant investment programs. Natalia is a recipient of several awards, including Top 25 EB5 Attorneys and a recognition from IIUSA She is a Vice Chair of the Ethics Committee of the American Immigration Lawyers Association (AILA), serves on the Ethics Advisory Board for the Arizona State Bar, and is a frequent presenter at professional events