Understanding 240-Day Work Visa Rule and Recent Changes

March 2016

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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240 Rule for the EAD for Work Visas

Author: New York Immigration attorney Alena Shautsova

One is authorized to work in the United States if his status permits him to do so (for example, an Asylee does not need a work authorization to accept employment or to be self-employed), or if he has an approved I-765 application (for example, L2 visa/status holders).

A person whose status is pending or whose EAD expired may not, usually, engage in employment in the U.S. For example, an asylum applicant who is waiting for adjudication of his/her asylum claims and whose EADexpired, cannot legally work in the United States without receiving a new EAD. In certain situations, however, the law provides for an automatic extension of the work authorization once the person files for an extension of expiring status. To wit, holders of A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, and TN status/visas enjoy automatic 240 day extension of their ability to legally work in the United States once an employer files for an extension of their status.

The regulations, unfortunately, exclude asylum seekers.

Recently, the regulations were amended to add to the automatic extension for H-1B1 (Chile, Singapore), E-3 (Australia) and CW-1 (Commonwealth of the Northern Mariana Islands) nonimmigrants whose status has expired, provided that the employer timely filed an extension of stay with U.S. Citizenship and Immigration Services.

The 240 day rule is helpful to employees and employers in terms of I-9 compliance. Under the DOJ (Department of Justice) rules, an employer may not employ a person whose eligibility for employment in the United States is not verified or whose status is expired. The 240 day rule makes it possible to continue legal employment of workers whose status expired, provided they are waiting for the extension of their status applications.

It should be noted that an employer must re-verify the employee’s employment authorization in Section 3 of the I-9 form once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first. Employers who fail to do so, face risks of sanctions and fines by the Department of Justice.

ESTA Travel Changes

Author: U.S. Visa attorney Alena Shautsova

Electronic System for Travel Authorization or ESTA allows citizens of certain countries to enter the United States without the need of a formal visa application. Recently, CBP updated its ESTA form to reflect changes to the Visa Waiver Program occurred in connection with the Terrorist Travel Prevention Act of 2015.

The new changes affect nationals of VWP countries who have been present in Iraq, Syria, or countries listed under specified designation lists ( currently including Iran and Sudan ) at any time on or after March 1, 2011(with limited government/military exceptions), as well as Nationals of VWP countries who are also nationals of Iraq, Syria, Iran or Sudan.

The strict new requirements of the VWP can be waived in DHS’s discretion for qualifying applicants. As a general matter, categories of travelers who may be eligible for a waiver include individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty; on behalf of humanitarian non-governmental organizations on official duty; or as a journalist for reporting purposes.

Additionally individuals who traveled to Iran (only after July 14,2015) or Iraq for legitimate business -related purposes may be eligible for a waiver as well.

To get a waiver, the individual must use the CBP enhanced system. There is no separate waiver application to be filed.

The bad news is that now individuals who traveled to Libya, Somalia and Yemen since March 1, 2011, will be added to the list of countries under the new VWP restrictions as announced by the Secretary of Homeland Security.

The good news is that individuals subject to the new restrictions may still apply for U.S. visas using regular visa application process. DHS also assures that in case of emergency, they will be able to expedite the consideration of applications.

Fighting Allegations Of Marriage Fraud

Author: Green Card Lawyer Alena Shautsova

A government’s allegation that a person committed marriage fraud for the purposes of avoiding Immigration laws in the United States, permanently bars the non-citizen from any and all Immigration benefits in the United States. Consider a case, where a non-citizen first tries to obtain a green card through fraudulent marriage (as determined by USCIS), and then, years later, marries for real… Do you think there is a way out?

It depends. First, what is going to happen is that USCIS will deny the second, new I-130 immigrant visa petition filed by the new U.S. citizen. The proper means to challenge the denial is to file a lawsuit in the district court under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274-76 (7th Cir. 2009).

What happens next is that the district court will review USCIS’ determination of fraud using “substantial evidence” standard. But what is “substantial evidence”? While there is really no clear definition of this standard, the case law says that where there is non-citizen’s own written admission of fraud, the substantial evidence standard will be met. Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (admissions that marriage was entered into in exchange for money and access to apartment and vehicle provided “substantial evidence” that marriage was fraudulent); Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 1995) (upholding denial of petition based on sworn statement admitting marriage fraud); Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse’s admission that she married alien as favor to help him obtain permanent residency shows that they “did not intend to establish a life together as husband and wife when they married”).

Sometimes, people make these admissions to avoid potential Criminal liability, and later they deeply regret that they did not opt for a Criminal trial. In some cases, it is possible to suppress the confession of marriage fraud, but only when evidence was obtained under circumstances involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Lopez-Martinez , 468 U.S. at 1050–51; see Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010); Martinez-Camargo, 282 F.3d at 492; Matter of Toro, 17 I. & N. Dec. 340, 343 (1980).

An alien claiming coercion by government officials “must come forward with proof establishing a prima facie case before the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence.” In re Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975); see Luevano v. Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).In such cases, applicants’ statements will be heavily scrutinized for consistency and timing.

An important note to make is that the regulation, 8 C.F.R. § 103.2(b)(16)(ii), prohibits the agency from basing a determination of statutory eligibility on information that has not been disclosed to the applicant or petitioner. The courts pointed out that “the better procedure” is for agencies to “produce the statement in question,” Ghaly, 48 F.3d at 1435, and we are puzzled by USCIS’s continued failure to do so. See id. at 1437 (Posner, J., concurring) (describing refusal to provide statement as “inexplicable, offensive, and absurd, as well as contrary to the INS’s regulations”). This being said, that applicants and practitioners always should insists on production of the “statements” made by “kind souls” who would like to preclude honest applicants from receiving a status in the United States. As the law shows, an applicant is entitled to it!

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