Trend Towards More Scrutiny at the Borders and at U.S. Consulates


Scrutiny at the border and consulates is tighter following Trump’s revised travel ban.  Foreign travelers can expect detailed questions about their backgrounds.  For those travelers who were present in an area when it was controlled by an Islamic State (ISIS), the traveler may have a social media check in addition to their consular interview in order to determine any possible ties to ISIS or other terrorist groups.   

In particular, business travelers on U.S. work visas and persons traveling without a visa under the U.S. Electronic System for Travel Authorization (ESTA) can now expect increased scrutiny when entering the U.S.  The increase in scrutiny on consular processing and border inspections has made it more difficult to get a visa and also to enter the U.S. as quickly as once possible.

Our firm provides robust services in assisting clients with both consular processing and border entry.  Please contact us.


A New Legal Framework for the National Interest Waiver


Immigrant visas under the EB-2 category are available to qualified immigrants who are professionals holding advanced degrees or their equivalent or because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural or educational interests or the United States.  Unless waived, the the foreign national must be employed by a U.S. employer and have a U.S. job offer and have met the labor certification requirement that demonstrates that the Department of Labor has determined that there are not sufficient workers who are willing, qualified, and available.

The decision in Matter of Dhanasar establishes a new legal framework for the National Interest Waiver.  Under the new National Interest Waiver framework, USCIS may, in its discretion, grant a national interest waiver if the petitioner establishes by a preponderance of the evidence that

  • the foreign national’s proposed endeavor has both substantial merit and national importance;
  • that the foreign national is well positioned to advance the proposed endeavor; and
  • that it would be beneficial for the U.S. to waive the requirements of a job offer and labor certification

Under the first criteria, proposed endeavor has national importance, the Dhanasar Court decided to consider and assess endeavors in terms of “national importance” rather than “national in scope”. For the second criteria, the Court focused on whether the foreign national is well positioned to advance the proposed endeavor.  Under the third criteria, the petitioner must demonstrate that it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

The old National Interest Waiver framework was issued in the 1998 decision Matter of New York State Department of Transportation (NYSDOT).  Under NYSDOT framework, a petitioner must show that the area of employment is of “substantial intrinsic merit”, any proposed benefit of the individual’s endeavors will be national in scope and the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

Matter of Dhanasar has modernized the National Interest Waiver framework under NYSDOT.  I think we will see that the new National Interest Waiver is more applicable for the foreign national professionals, industries and technology of today.


Protecting Lawful Permanent Residents

Helping families, couples and individuals with U.S. visa solutions and naturalization

The recent Executive Orders issued by President Trump have created very high levels uncertainty for so many immigrants, even those not from the seven countries subject to the current travel ban. The term “lawful permanent resident” seems like a permanent status but it now it is more important than ever for lawful permanent residents (LPR) to understand when they may be subject to removal from the U.S. for abandonment and how it may be avoided when traveling abroad.

For purposes of naturalization eligibility, temporary or brief travel usually does not affect permanent resident status; however, if Customs and Border Protection (CBP) determines that there is a need for further questioning upon re-entry, a secondary inspection at the port of entry is required.  As a guideline, CBP is accustomed to asking for evidence of the lawful permanent resident’s status and ties to the U.S. from the traveler. This information can be hard for the returning lawful permanent resident to provide if not prepared ahead of time. Lawful permanent residents may find it helpful to travel with the following documentation:  proof of family ties in the U.S., current employment in the U.S., recent income tax return (if filing as a U.S. resident), club memberships, property and/or lease.  CBP’s consideration does not need to be limited to these factors and no one factor is necessarily more important than any other.

Although only a judge may make an abandonment finding, CBP may have a separate belief that the lawful permanent resident has abandoned his or her residence and try to have the lawful permanent resident sign a statement to relinquish permanent residence, Form I-407, and leave the U.S.  CBP may consider any length of absence from the United States, even if less than 180 days. Please consult with your attorney if you believe you will be living and/or working outside the United States for any period of time. 

If you are a lawful permanent resident, you may need to apply for a reentry permit prior to your departure so that the length of your absence abroad cannot be used as a factor in your abandonment.  A re-entry permit does not preclude a finding of abandonment.  If a lawful permanent resident visa is outside the U.S. for one year, a re-entry permit or returning visa will be needed for entry.  A re-entry permit is valid for two years.  There is no limit on the number of times an applicant can apply for a re-entry permit.

When re-entering the U.S. after brief international travel, a valid, unexpired “green card” (Form I-551, Permanent Resident Card) is needed.  If a green card is not available, the lawful permanent resident must have a I-551 or CR-1 stamp in his/her passport to show proof of lawful permanent residence.  For information pertaining to entry into the United States, see U.S. Customs and Border Protection’s web page at www.cbp.gov.




Dreaming of starting a franchise business in the U.S. but not from a country with a treaty with the U.S.? Here are a few ideas:

Besides the E-2 Treaty Investor category, other options for franchises are currently the EB-5 investor visa and employment-based immigration options including the EB-1 for extraordinary ability, outstanding professor or manager, or multinational executives or managers.  Of the three subcategories, multinational executives or managers may apply to a greater percentage of your franchisee investors.  For investors to establish their businesses in the U.S., the  B-1/B-2 which may be used for limited start-up activities (but no-hands on work until work authorization is approved).

Every case is unique.  Franchisees, like other immigration clients, need to know their immigration options and determine if they are eligible for the immigrant visa and status.  There may be risks in any foreign investment option and advice on how to address, should be provided by experienced business immigration counsel.

Disclaimer: The information contained on this web page is provided for general information only and should not be construed as legal advice or the formation of an attorney/client relationship