Issue spotting for divorce matters should take into account that at least one of the two parties may not be a United States citizen.

In terms of immigration law, divorce is the legal termination of a valid marriage, but separation does not legally terminate a marriage, unless a separation agreement as drafted and/or per the relevant state law (or law of the applicable country) is seen to have the legal effect of a divorce. Notwithstanding, both separation and divorce—depending upon timing issues—may greatly affect a foreign national’s legal status in the United States.

Below are “relevant questions/possible issues” to be aware of when being involved in a separation or divorce matter which may involve at least one of the two parties not being a U.S. citizen:

1) In the context of nonimmigrant status--if both spouses are in lawful nonimmigrant status in the United States, does one of the spouses have a nonimmigrant dependent status derived from the other spouse? If so, then the spouse with the nonimmigrant dependent status will be in the situation of the nonimmigrant status no longer being valid once the divorce is finalized.

2) In the context of employment immigration—if one spouse is recognized as a derivative beneficiary of a foreign national spouse who is recognized as the direct beneficiary, then the derivative beneficiary will not adjust to permanent resident status if the divorce is finalized before the adjustment of status is approved.

3) In the context of family immigration of a U.S. citizen spouse petitioning for permanent resident status of an immediate relative foreign national spouse, an issue of the validity of the marriage arises which must be analyzed and reviewed when both spouses begin to live separately between the date of the marriage and the date of the adjustment of status interview.

4) Again in the realm of family immigration of a U.S. citizen spouse petitioning for permanent resident status of an immediate relative foreign national spouse, adjustment of status applicants can trigger immigration proceedings by failing to appear for an adjustment of status interview.

5) In the context of family immigration of petitioning to remove the conditions of residence, a conditional resident spouse can individually qualify for a waiver and obtain permanent resident status if it can be shown that the marriage was entered into in good faith, but the marriage was terminated by divorce or annulment prior to the filing to the Petition to Remove Conditions on Residence.

6) Again in the context of family immigration of petitioning to remove the conditions of residence, a conditional resident spouse can qualify for a waiver if he/she can demonstrate that the marriage was entered into in good faith, but he/she was battered or subjected to extreme cruelty by the United States citizen spouse or the permanent resident spouse during the marriage.

The above “relevant questions/possible issues” are merely a brief summary of the possible questions and issues to be thinking of in the context of divorce matters involving both foreign nationals and United States citizens, and should not be taken as an entire issue spotting list for these types of matters. Overall, this listing should demonstrate that it is very important to attempt and be aware of that a separation or divorce matter many not only have the usual results which the traditional divorce or family law attorney has come to know, but also can possess some different and unique twists and turns of immigration law consequences.

Terrence L. Olsen formed his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee in 2003. He received his Bachelor of Arts degree in English from the University of Tennessee at Chattanooga, a Master of Fine Arts in Creative Writing from Southern Illinois University, and his Juris Doctor from the William and Mary School of Law. Terrence L. Olsen counsels individuals and companies of various international backgrounds with immigration matters related to living and working in the United States, as well as assisting with religious worker issues, nurse immigration, national interest waivers, and permanent residence obtained through marriage to a U.S. citizen. He has given immigration law lectures to international students and advisors at the University of Tennessee at Chattanooga, University of Tennessee at Knoxville, Southern Adventist University, Bryan College, and Dalton State College. He is also an adjunct professor at Bryan College for its MBA program.

10 Ideas For Using Immigration Law To Stimulate The U.S. Economy And Create Jobs

By Greg Siskind

Anti-immigrants love recessions because they can whip up fears of foreigners coming to the US and stealing American jobs. But pro-immigration advocates can just as easily make the case that immigrants are job generators for Americans. And immigration can do even more to help the economy than is the case under the current system. Here are ideas for changing immigration law to attract needed capital into American businesses and enable employers to hire more American workers. Some of these are changes that can be made by a government agency while others would require legislative changes.

1. Create a retiree visa
What if we could find people to immigrate to the US who are well off financially who want to spend money in the US and who have no desire now (or likely in the future) to try and find employment in the US? We can. They’re retirees and they’ve been coming to the US for years. But many are reluctant to buy vacation or retirement properties because they only get 90 or 180 day stays when they come over and have to deal with convincing a CBP officer that they have strong ties abroad and are going home after each trip.

Why not create a retiree visa that would be limited to people who can show a steady source of non-work income, they have their own health insurance and they own a residence in the US without a mortgage?

2. Create a new medical visitor visa
You may not have heard of medical tourism, but it is a very important new trend in global health care. People are more and more frequently traveling outside their own countries for health care. A lot of Americans are looking to go abroad for procedures, particularly the uninsured, because of big cost differences. And a lot of wealthy foreign nationals are coming to the US because we have cutting edge treatments with some of the best doctors in the world. Creating a separate tourist visa for people who have the financial means to pay for their US treatment will give a boost to American hospitals and having foreign nationals able to pay the full bill for their care helps to underwrite Americans who don’t qualify for government funded care, but are not well off enough to pay 100% of their medical bills.

3. Make F-1s dual intent and expand STEM occupations list
When a student applies for an F-1 visa, the student must demonstrate that he or she has no intention to immigrate. But it’s pretty hard for someone to prove this when they’re coming over for a program that lasts several years.

Making F-1 visas a dual intent category and not denying entry on the basis of a lack of ties to the home country will help in two very important ways. First, foreign students very often receive no financial aid and are, in effect, subsidizing American students unable to afford higher education without some outside help.

Second, a great number of American universities have been unable to find enough American students to fill slots in graduate programs, particularly in the STEM fields – science, technology, engineering and math. Those foreign students often make it possible for a university to keep a department going that otherwise might not survive and thrive without them here. And that means American graduate students have MORE opportunities. International students also help ensure that America’s place as the premiere country for research is maintained.

F-1 students recently got good news when USCIS enacted a rule permitting practical training to be extended an additional 17 months when they have a degree in a STEM (science, technology, engineering or math) field. Unfortunately, USCIS took a very restrictive reading on which jobs are in STEM fields. The social, behavioral and economic sciences are left out despite the fact that the National Science Foundation includes these occupations in their STEM fields list. And how about including health science graduates? Even if the goal is promote industries other than direct health care, it’s worth noting that many of these graduates work in biotechnology, pharmaceutical and medical device industries which are key export fields for the US.

4. Improve the EB-5 immigrant investor program
It’s a real shame that only a few hundred of the ten thousand immigrant investors available each year end up getting used. Congress created this green card category in 1990 and the idea was to help American businesses attract foreign capital and also to create plenty of jobs for American workers. EB-5 immigrant investors who invest $1,000,000 and create ten jobs through their investment are supposed to get a green card in exchange for their helping the country.

Most countries in the developing world have an immigrant investor program, but the one in the US is, unfortunately, pretty unpopular. Why? A lot has to do with USCIS’ well-documented hostility to the program over the years.

It’s time for the our government to realize that this program is important to the country and making it difficult for immigrant investors to use the program costs Americans jobs and prevents American businesses from getting capital at a time when they could really use the help.

Here are some possible changes that would inject some life in to the EB-5 program:

a. Mandate premium processing – There is no reason why it should take USCIS seven months to process an I-526 application and then another four to six months for the State Department to deal with the consular processing or two more years if the applicant chooses to adjust status (not kidding). If an applicant can afford the investment required for the EB-5, surely USCIS and DOS can come up with fee amounts that will enable the two agencies to be able to provide speedy, high quality service. In fact, the higher fees will enable USCIS to hire more people, thus making the EB-5 program a job creation visa in a new way.

b. Permit concurrent filing of I-526s and I-485s – The adjustment of status process in California is taking 27 months according to the latest California Service Center processing time report on top of the 7 months for the I-526. 27 months is a travesty, but at least allow concurrent filing as is the case with other employment-based green card categories.

c. Allow EB-5s for those providing loans to American companies and not just those taking equity investments – USCIS has been a real stickler over the years in terms of restricting the types of investments that work for the EB-5 program. Loans are barred under the EB-5 rules even if the loan results in tangible job creation. This seems pretty dumb when we’re in the middle of one of the tightest credit markets in a century and businesses are failing every day because they can’t get loans. The federal government is LOANING money to businesses to help save jobs. Yet USCIS acts like an investor is somehow being sneaky when an investment is structured as debt rather than equity. A loan can save a distressed business and result in job creation just like an equity investment.

d. Allow constructions jobs to count – USCIS will not count full time directly created jobs in construction in determining if ten full time jobs have resulted from the investment. Do construction workers somehow not count as real workers? Count ‘em.

5. Bonus H-1Bs for employers that have expanded their US work force
Sure, we can get in to another argument over H-1Bs and get in to the age old arguments over how protectionist we should be when it comes to insulating the American labor market. But let’s put that aside for the moment and think about places where there might be some room for agreement.

Today I read about one of the country’s biggest banks laying off 35,000 workers. How about rewarding companies that expand the number of American workers on their payroll with bonus H-1Bs? Maybe something along the lines of a formula where for every four or five workers a company’s work force grows, they get a cap exempt H-1B slot? Maybe more slots for companies that expand in higher than average unemployment areas or in indigent communities.

6. Eliminate the H-1B cap for occupations with less than 4% unemployment
Why 4%? That’s a figure economists often consider to be “full” employment where workers have a relatively easy time finding employment and rates below this figure have an inflationary effect. If an employer can demonstrate it is filling jobs with H-1B workers in an occupation with full employment, then there should be little concern about displacing American workers. And jobs for Americans in the industry are saved because employer unable to find needed workers frequently shut down their US operations and move abroad, causing American and non-immigrant workers alike to lose their jobs.

7. E-2s – scrap the requirement that investing happen prior to the issuance of the E-2 visa and replace it with a probationary E-2 for a year that can be extended if the investor has begun investing funds.
The E-2 visa is available to investors investing “substantial” funds in a commercial enterprise in the US. When I explain to someone thinking about setting up a business in the US and getting an E-2 visa, they are often perplexed when I explain that they have to be actively in the process of investing a substantial amount of money and only after their money is sunk in the business will a consular officer approve the visa. Huh? You sink a fortune in to a business and then the consulate turns you down for the visa. Now that’s attractive. Not!

While there is a legitimate concern with people being granted an E-2 visa and then not really going through with the investment, there is an alternative approach that could be tried. How about only approving the initial E-2 visa for a new investment for a year if the investor has not already invested substantially in the US business? We already do something similar with L-1 visas where USCIS will typically grant a one year approval for a new office in the US.

8. Create a green card category for E-2 investors if they have maintained the investment for five years and have created jobs for 10 workers
One of the gaps in our immigration system is that people can get an E-2 visa, create lots of jobs and invest lots of money, but they may never be able to get permanent residency. How about rewarding people who have invested for many years and created many jobs with permanent residency? Perhaps allow conversion after a person has invested for ten years and created ten jobs. Make the time shorter if the jobs are created in an inner city or rural low income area or higher than average unemployment area.

9. Create a new non-immigrant category for investors
Somewhat related to the above idea is the possibility of creating another investor immigration program. This one would have the following elements:

a. Unlike the E visa categories, this one would not be based on being a national of a qualifying treaty country.

b. Applicants would need to make a $250,000 initial investment ($200,000 if the investment is in an inner city or rural low income area or higher than average unemployment area)

c. Four jobs created must be created as a result of the investment (which must be shown before the visa is extended)

d. The visa would be approved for a period of three years

e. Holders of the visa can get extensions, but only with an additional $250,000 each time the extension is requested and only with a demonstration before each extension that the prior investment resulted in the required job creation).

f. The investor can apply for a green card any time after the investor can document that 12 jobs have been created as a result of the investment (perhaps a lower threshold like 10 jobs if the jobs are created in an inner city or rural low income area or higher than average unemployment area).

10. End green card caps for nurses and doctors

Sure the shortage of nurses and doctors is well-documented. But how is this one a stimulus or a job creation measure? Hospitals cannot expand without an adequate number of nurses and doctors. That’s infrastructure money that isn’t being invested when it could be. And studies show that for every new hospital bed that comes online, jobs are created – as many as three per new bed. There’s also plenty of evidence that a lack of access to health care in poor and rural communities inhibits economic development in those communities. Perhaps add expedited green card processing for nurses and doctors working in medically underserved communities as well as an inner city or rural low income area or higher than average unemployment areas.

Greg Siskind is the author of LexisNexis’ J-1 Visa Guidebook and the upcoming SHRM Employer’s Immigration Compliance Desktop Reference.

Increasingly attorneys need foreign language interpreters and translators for services from basic consultations and document translation to depositions and trial. However, finding a competent and sometimes certified interpreter or translator can be a major hurdle.

Recently I was asked to find a Q’anjob’al interpreter (Q’anjob’al, pronounced Kan jo bal, is a language of Guatemala, of which there are five; Q'anjob'al, Achi', Chuj, Mam, and Spanish) for a legal matter in Chattanooga. I tried to contact the one Q’anjob’al interpreter for the Immigration Court in Memphis, but he serves about a third of the immigration courts in the United States and was unavailable. The only other Q’anjob’al interpreter that I knew of was a thirteen year old who translates from Q’anjob’al to Spanish for his family, but I did not think that he would be qualified for legal proceedings.

Hence, this mini guide on how to find and hire an interpreter for legal services in Tennessee. First, identify the type of service needed for your specific task; from basic comprehension to state certified interpreters for depositions or hearings governed by Supreme Court Rule 41(a), (b). Next, once the need is identified, commence finding your interpreter, the costs involved, and scheduling available times. I have found that most basic services can be handled by a friend or member of the community that is fluent in your client’s native language and has English skills. Finding this person is relatively easy since someone had to have spoken with you or a staff member to make the initial appointment or to ask a question. However, for state registered or state certified interpreters or translations finding a qualified, much less available, interpreter is in many cases impossible or cost prohibitive.

Second, call your local court clerk for a list of qualified interpreters or go to http://www.tncourts.gov/geninfo/Programs/Interpreters/rosterindex.htm for a list of qualified and available interpreters. However, do not expect to find an interpreter for a language other than Spanish both qualified and available in Tennessee. If Tennessee does not have a listing, look to companies specializing in interpreter and translation services like Lion Bridge or Ubiqus. These companies can supply interpreters or translations for most of the world’s languages, but for a language like Q'anjob'al, hiring an interpreter can be fairly expensive since travel and minimum time is almost always involved. While Lion Bridge did have a qualified and available interpreter for my search, the costs were prohibitive for this migrant farm worker and his family.

Timothy Allen Price is a Staff Immigration Attorney with the Community Legal Center’s Immigrant Justice Program in Memphis.