Visa Lawyer Blog

On Wednesday, President Obama gave the State of the Union address. During his speech, President Obama discussed many key themes in immigration, including the DREAM Act for students and foreign students educated in this country to have a way to legalize their status, and a belief that he’s done enough to the secure the border. More importantly, he framed these themes in context to America’s economic recovery, innovation and growth.

In the State of the Union address, President Obama repeatedly signaled to Congress that he would sign sensible bills to reform our immigration system, big or small. But he quickly noted that partisan politics would make it all but impossible to pass comprehensive reform:

"The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now. But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, and defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away."

There are plenty of bills that fit this description, from the DREAM Act to proposals offering green cards to foreign graduates in science and engineering to support for immigrant entrepreneurs, but they are just as likely to flounder in the sea of partisan politics as something grander and more comprehensive.

And while the president suggested that the ball was in Congress’s court, he didn’t mention that his Administration has moved forward on reforms that don’t require Congressional action. The Administration has become more aggressive in the last in year in fixing parts of our immigration system, such as overhauling immigration detention, a review of the Secure Communities program, a re-invigoration of the use of prosecutorial discretion, and attempts to promote streamlined adjudications and family unity. The latter, announced just weeks ago, has generated real excitement among immigrant communities.

Similarly, changes to the way government officials decide what cases should be prosecuted in immigration court—and what cases should be dropped—have given hope to millions of immigrants that they may be able to stay with their families. But there remains a lot of uncertainty regarding how DHS will routinely exercise discretion, especially amidst reports that DREAM Act students and others who clearly fit the government’s low priority status are still being deported.

In the areas of detention reform and Secure Communities, however, the early enthusiasm about change has been replaced by wariness on the part of advocates who want to believe promised reforms will be made. They have been repeatedly disappointed by delays in the detention realm and a continued commitment to keep Secure Communities alive, a program that many believe undermines community safety and policing. A special task force voted out a series of necessary reforms and gave their report to Secretary Napolitano last September, but DHS has yet to announce how it will implement these recommendations.

Although these ongoing administrative reforms don’t fit tidily into the overarching vision of immigration policy the President laid out in the State of the Union, following through on them would have a lasting effect on both immigration enforcement and the consideration of benefits for those stuck in our broken immigration system. And the President shouldn’t abandon his larger vision. He has made significant strides in helping to reshape how people who don’t much care about immigration think about it and that will be critical when the time comes for comprehensive reform. But for those most directly affected by our immigration crisis, it is the most immediate details that matter most.

It is a sad day when a high school student is denied an opportunity to pursue his sports passion and a solid university education because of an arbitrary and capricious policy. Chester Brown is a highly recruited football player in the State of Georgia. He is also the son of Samoan immigrants. Chester committed to the University of Georgia back in July, 2011. Yesterday, Chester reluctantly announced he will not be attending as the result of a controversial immigration policy at the university. The Georgia Board of Regents Policy states that an undocumented student cannot be admitted to the school over a legal resident should there be a space limitation.

Chester would not say whether the policy forced him to make the decision, but the Atlanta Journal Constitution, cited multiple sources, indicated it was. Chester said simply it was his decision - and a painful one at that. "It was my decision to make, and I had to do it," said Chester. "When I told the coaches they just were surprised, but they told to me do what I have to do. I don't want anyone to think that we went out on bad terms, and I love UGA, but I had to make this decision." Chester's status is unclear. His parents, who immigrated to the country decades ago, said he was born in the United States. But he apparently does not have the proper documentation.

The Board of Regents rule came about following an incident involving Jessica Colotl, a Kennesaw State student who sparked a national immigration debate after she was found to be in the country illegally following a traffic stop in May of 2010. She was attending the school and paying in-state tuition at the time. Colotl was jailed and nearly deported back to Mexico but was eventually allowed to return to school; she graduated last spring.

After the incident, the Georgia Board of Regents issued the following policy:

"A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution which, for the two most recent academic years, did not admit all academically qualified applicants (except for cases in which applicants were rejected for non-academic reasons)."

Chester's family and the school will continue to work in hopes of allowing him to take the Georgia scholarship offer, according to the AJC story. In the meantime, Chester will re-open his recruitment. While Chester's story does not have an unhappy ending, it does reflect how some states are taking a harder stance against any undocumented individuals. Rather than work with him to see if Chester is a U.S. Citizen, the Georgia Board of Regents Policy unilaterally makes a decision that has a serious impact on the future of individuals caught up in this policy. It is policies like these that made the DREAM Act such an important piece of legislation because even if Chester was brought here illegally, he could still have a chance to pursue his passion of football at a university and get a solid education. Let us hope that Chester's situation works out for the best.

Our offices specializes in complex J1 waivers, the following Blog post will describe a recent success case we feel will benefit our readers. This article is presented by Attorney Ekaterina Powell from our office.

A lot of J-1 Exchange Visitors coming to the United States are subject to a so-called “two-year rule” which means that J-1 holders are required to return to their home countries for two years after completion of the exchange program. This rule creates a lot of obstacles for foreigners who get married to U.S. citizens but are unable to adjust status because of the two-year rule.

So, what can these couples do in a situation like this?

There are four types of waivers of the two-year home residency requirement that are provided for in the Immigration and Nationality Act section 212(e):

1) No Objection waivers that are based on a no objection statement from the exchange visitor’s home country

2) Interested Government Agency (IGA) waivers

3) Exceptional Hardship waivers that are based on hardships to U.S. citizen or Lawful Permanent Resident (LPR) qualifying relatives (spouse or child(ren))

4) Persecution waivers that are based on exchange visitor’s risk of persecution on account of race, religion, or political opinion.

Often times, the easiest way to obtain a waiver is through a no objection statement received from an exchange visitor’s foreign government. However, in some situations, such statement is difficult or impossible to obtain if the J-1 program was financed, in whole or in part, by the foreign government.

For an exceptional hardship waiver, one needs to prove that an exchange visitor’s compliance with the two-year rule will cause exceptional hardship to his/her qualifying relatives. This article will describe an example of a successful J-1 waiver case based on exceptional hardship to a U.S. citizen spouse and child handled by our office.

Example of a_J-1 Exceptional Hardship Waiver case

In September, 2009, Jen came to the U.S. from China as a visiting scholar under J-1 visa. Jen was awarded a scholarship by the Chinese government to participate in a J-1 program and conduct research at a university in California. Jen became subject to a two-year home residency requirement because the Chinese government partially funded the J-1 program.

Jen and Chao met in 2009. They got married in 2010, and on January 29, 2011, their son Li was born. At the time of I-612 submission, which is the form used for exceptional hardship waivers, Li was less than 1 year old.

It has been held that hardship should be determined in the aggregate. See Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994). In the waiver application, we explained how Chao and Li would experience exceptional hardship in all possible travel scenarios if Jen complied with the two-year requirement, including serious financial hardship, Chao’s career disruption, health-related hardship associated with dangerous ecological environment in China, sociocultural hardship associated with inability to freely practice religion in China, and other considerations.
All these factors, considered together, take this case outside of the realm of normal hardships. The only possible way to minimize the hardships to the qualifying relatives is for Jen to stay in the U.S.

Career Disruption

Chao is a naturalized citizen of the United States. He was born in China and relocated to the United States in 1999. For the last several years, Chao has pursued career in the legal field. Chao is now a successful California-licensed patent attorney at a big and prestigious law firm.

Economic recession has caused many lawyers to lose their lucrative jobs and search for other careers. In this highly competitive legal job market, any career interruptions have a very negative impact on seeking employment.

With the waiver application, we submitted numerous newspaper and magazine articles describing the impact of the ongoing economic recession on the legal market. In addition, we provided affidavits from Chao’s co-workers, partners at his law firm, other friends in the legal field attesting to the fact that if Chao had a two-year career interruption, his position would be filled and it would be next to impossible for him to find comparable employment.

Chao has invested a lot of time, effort, and expenses into his legal education and obtaining a license to practice law in California. Legal practice in China is not an option for Chao as he would have to first graduate from a Chinese law school and obtain a license to practice law there, which is an impossible task to complete in two years. This means that Chao’s legal career would be disrupted for at least two years until he returns to the United States.
With the waiver application, we submitted arguments supported by documentation showing that Chao’s career would be disrupted in all travel scenarios if he went to China or if he stayed in the U.S. with or without Li.

Financial Hardship

In addition to career disruption, Chao would suffer financial hardships if Jen complied with the two-year rule.

First of all, if Chao and Li had to go to China with Jen, Chao would lose his job, the family would lose their home due to inability to make mortgage payments, and Chao would get into even more debt because he would not be able to keep up with student loan payments. Pursuit of a law degree has left Chao with thousands of dollars in unpaid student loans, which he would be unable to pay off if he lost his well-paid job.

As a second travel alternative, Chao and Li could stay in the U.S. while Jen is in China. However, Chao and Li would also experience substantial financial hardship in this travel scenario. Without Jen and with Chao’s full-time job and very busy work schedule that requires him to work 60-80 hours per week, Chao will be unable to take care of Li by himself. In absence of any help from family members, Chao would have to pay for daycare, which runs more than $1,000 a month. With thousands of dollars in student loans and mortgage, Chao spends most of his monthly salary paying off his debts. Considering Chao’s tight financial situation at this time, it would be impossible for him to pay for daycare, the student loans, and the mortgage for the family’s home.

If Jen takes Li with her to China and Chao stays in the U.S., the family will also experience exceptional financial hardship. If Jen acts in compliance with the two-year foreign residence requirement, she would have to teach courses at a university in China on a full-time basis. Jen will not be able to take care of Li by herself. Jen’s parents both work full-time jobs and live thousands of miles away from her home town.

It is also not feasible for Chao and Jen to go to China and leave Li in the U.S. Li is only 9 months old and there is no one who could take care of him in absence of his parents.

Health-Related Hardships

In addition to serious financial hardships, it would not only affect Chao and Jen to be separated from their baby Li, but it would also impact Li’s upbringing and his physical and mental health. Since Li is a minor, his hardships are intertwined with the hardships of his parents.

If Jen leaves Li with Chao in the U.S., Li will not receive his mother’s love and attention for two years. Chao will not be able to care for the baby while maintaining a full-time job and will not be able to afford the daycare because most of Chao’s salary goes towards mortgage payments and student loan payments. If Chao sells his house and obtains the money for daycare, Li will be brought up by a nanny and will spend his next two years away from his parents.

If, on the other hand, Jen takes Li with her, Li will have no one to care for him. With the full-time teaching position that Jen is required to perform, Jen will need to place baby Li in daycare as she has no family or friends who could assist in childcare.

In addition, moving to China will pose serious health risks to the baby. With the waiver application, we submitted numerous articles substantiating health risks for newly born children in China, including severe allergic reactions, etc.

Waiver of the Two-Year Residence Requirement is in the Public Interest

In addition to proving exceptional hardship to a qualifying relative, one must also show that waiver of the two-year residence requirement is in the public interest. In our case, public interest would better be served if Jen did not have to comply with the J-1 requirement.

Chao is actively involved in community services. He is a volunteer for a number of nonprofit organizations that provide pro bono legal services to indigent members of the community. Chao contributes hundreds of hours in volunteer legal services to ensure that everyone, including victims of human and civil rights violations, receives legal representation. With the waiver application, we provided documentation establishing that if Chao went to China for two years or if he had to stay in the U.S. without Jen, he would not be able to continue his volunteer services, which would be a great detriment for the community.

The public interest would be better served if Jen stayed in the U.S. with her husband and child and continued her research at the university in California.

Conclusion

The hardships that Chao and Li will experience are unusual and significant, and, thus, go beyond the regular hardships associated with separation from family members.

In cases where compliance with the J-1 requirement leads to separation from both, a U.S. citizen spouse and child, USCIS shall assert serious adverse reasons for denying the waiver. However, even in cases with a citizen-spouse and citizen-child, USCIS does not automatically approve such waiver applications and makes its determination on a case-by-case basis considering the circumstances of each particular case.

The court in Ken Tong Chen v. Attorney General, 546 F. Supp. 1060, 1065 (D.D.C. 1982) stated that “where the applicant alleges that denial of a waiver will result in separation from both a citizen-spouse and a citizen-child, a finding of “no exceptional hardship” should not be affirmed unless the reasons for this finding are made clear.”

The court points out that the INS [now USCIS] acknowledged that “in cases where both spouse and child (children) are U.S. citizens or lawfully resident aliens, exceptional hardship will generally exist due to the difficulty experienced by a family with children in parting from their relatives, friends and familiar surroundings, and attempting to readjust to life in a foreign country where they are not familiar with the language, mores or culture,” citing Matter of Nassiri, 12 I.&N. Dec. 756, 757 (1968).

The public interest is served, consistent with the Congressional policy, only if there are serious adverse reasons for denial of waivers in cases involving both a citizen-spouse and a citizen-child. Since in our case both the citizen-spouse, Chao, and the citizen-child, Li, will experience significant hardships, the waiver of the two-year home residence requirement is warranted.

Two months after submission of I-612 Waiver Application, the above-referenced case was approved by USCIS and Department of State. Chao and Jen do not longer have the fear of a lengthy separation and are now in the process of filing their marriage petition with USCIS.

The case described in this article is an example of a successful J-1 waiver case based on exceptional hardship to a citizen-spouse and citizen-child. However, please be aware that the circumstances of each case are different. Even if the facts of your case are similar to the ones described in this article, it does not mean that USCIS will automatically approve the application. Therefore, you need to consult an attorney for a careful analysis of your case if you consider a waiver application.

In a previous Blog post we have updated the period of Admission for Canadian Applicants, this post will provide the latest update for Mexican Professional Applicants under NAFTA.

Prior to Mexico’s accession to the U.S./Canada agreement. IMMACT90 made U.S. immigration laws more restrictive. When Congress later approved the favored relationship--NAFTA--citizens of Mexico were given the benefit of the then-current U.S. immigration law. Benefits granted to Canadian citizens of the CFTA prior to IMMACT90, therefore, were not granted to citizens of Mexico. Unlike Mexicans, Canadians are not required to have visas except in the E and K categories, although they must meet all the requirements of a visa category to be eligible for admission to the United States.

In contrast, citizens of Mexico without border crossing cards (BCCs) must have visas, and therefore, they are not eligible for the port-of-entry adjudication afforded Canadian citizens by NAFTA. Although U.S. immigration laws have become increasingly restrictive, NAFTA citizens of Canada and Mexico are favored more than businesspersons from any other country.

A TN visa issued to a citizen of Mexico by a U.S. consular officer is valid for a maximum of one year. The TN visa validity limitation is required by the U.S. Department of State’s reciprocity schedule. The validity of the TN visa, however, does not determine the period of time that a Mexican TN nonimmigrant alien may be admitted in TN status.

A citizen of Mexico with a valid TN visa may be admitted for a period of up to three years in TN status.

Determining the Appropriate Period of Admission:

A citizen of Mexico may be admitted to the United States in TN status for up to three years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

The period of initial admission for citizens of Mexico in TN status should be for the full period of intended employment, up to a maximum of three years. The intended period of employment should be indicated in a letter or similar statement supporting the TN application for admission and signed by the prospective employer. If the period of employment will exceed the validity of the TN visa, the applicant for admission still may be admitted up to three years regardless of the expiration date of the TN visa, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Examples help to illustrate the appropriate period of admission for a TN nonimmigrant alien.

Example #1: A citizen of Mexico may present a TN visa valid for a period of one year accompanied by a letter from the prospective employer indicating that the intended period of employment is for a period of three (3) years. The Mexican nonimmigrant alien may be admitted for a period of three (3) years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Example #2: A citizen of Mexico may present a TN visa valid for a period of one week after the date of application for admission accompanied by a letter from a prospective employer indicating that the intended period of employment is for a period of three (3) years. The Mexican nonimmigrant alien may be admitted for a period of three (3) years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Example #3: A citizen of Mexico may present a TN visa valid for a period of one week after the date of application for admission accompanied by a letter from a prospective employer indicating that the intended period of employment is for a period of one (1) year. The Mexican nonimmigrant alien may be admitted for a period of one (1) year, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Foreign workers traveling into their destination countries can help themselves enormously by being able to articulate to border agents the specific purpose and nature of their trip or assignment and their qualifications to take on the assignment. CBP agents should be educated about the TN Admission rules, and avoid any unnecessary delays for applicants coming to work under NAFTA provisions.

With the upcoming changes to the I-601 Extreme Hardship Waiver coming this year, allowing applicants to file the Waivers inside the US, we wanted to provide some statistics on the status of cases currently filed overseas.

As you may know,if you are a U.S. citizen or legal permanent resident who is married or engaged to an undocumented immigrant you may think you can easily legalize your spouse. This may be harder than you thought. There are times when your loved one will be deemed “inadmissible” and therefore unable to simply file through you for a green card. In such a situation it may be possible to file an I-601 Application for Waiver of Grounds of Inadmissibility for them. This consists of filing an I-601 immigration form and evidence of hardship.

So what is the current approval rates and processing times for I-601 applications:
1. at all overseas district offices; and
2. at the field offices within each district, specifically for those filed in Ciudad Juarez (CDJ).

According to AILA, good reports received on decreased processing times for I-601s adjudicated at the USCIS offices in Athens, Anaheim, Lima, Guatemala City, and Bangkok. Attorneys have also noticed a significant increase in processing times of triage cases at CDJ, Mexico.

Preliminary data for Forms I-601 in FY2011 are as follows:

Received: 23,124 (Includes reopened cases after I-290B)
Completed: 21,352
Pending end of year: 9,072
Approval Rate total: 84%
Approval Rate Bangkok District: 54%
Approval Rate Rome District: 50%
Approval Rate Mexico City District: 88%
Approval Rate Ciudad Juarez 90%
(Includes Mexico F.O., Monterrey F.O., and HQ Components)

Processing Times:

Percent of cases completed within 6 months (excluding time due to waiting on applicant – for example, to respond to RFE): 74% (Target was 70%) [Note that 73% were processed within 6 months actual processing time)

Percent of cases pending more than 6 months (excluding time due to applicant delay): 5%

This fiscal year, decreased the number of I-601s pending more than 6 months by 82%.

More updates will come shortly, tolearn more about I-601 Waivers, watch our videos here and a process video here.

The new Policy has been expected, but now it is official. The Border Patrol this month is overhauling its approach on migrants caught illegally crossing the 1,954-mile border that the United States shares with Mexico.

The U.S. Border Patrol has announced a change in the so-called catch-and-release-policy, whereby illegal immigrants from countries other than Mexico, captured at the U.S.- Mexico border were automatically released to await a court hearing. Very few ever show up for their court hearing in reality.

The Border Patrol now feels it has enough of a handle to begin imposing more serious consequences on almost everyone it catches, from areas including Texas' Rio Grande Valley to San Diego. The "Consequence Delivery System" -- a key part of the Border Patrol's new national strategy to be announced within weeks -- relies largely on tools that have been rolled out over the last decade on parts of the border and expanded. It divides border crossers into seven categories, ranging from first-time offenders to people with criminal records.

Punishments vary by region but there is a common thread: Simply turning people around after taking their fingerprints is the choice of last resort. Some, including children and the medically ill, will still get a free pass by being turned around at the nearest border crossing, but they will be few and far between.

The new strategy was first introduced a year ago in the office at Tucson, Ariz., the patrol's busiest corridor for illegal crossings. Field supervisors ranked consequences on a scale from 1 to 5 using 15 different yardsticks, including the length of time since the person was last caught and per-hour cost for processing. The Border Patrol has introduced many new tools in recent years without much consideration to whether a first-time violator merited different treatment than a repeat crosser.

It remains to be seen how this new policy will affect illegal immigrants entering the US, and the ability to help them become legal in the future.

We will keep you posted as we learn more about this policy. Read more here

The following is a brief update regarding the period of admission allowed under the TN visa and how is it determined by CBP officers.

The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to qualify for TN nonimmigrant classification in order to provide professional services in the United States.

A citizen of Canada may apply for TN classification concurrently with an application for admission at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station. It is not necessary for a citizen of Canada to first apply for a TN visa at a U.S. consulate outside the United States.

Determining the Appropriate Period of Admission:

A citizen of Canada may be admitted to the United States in TN status for up to three years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

The period of admission for citizens of Canada should be for the full period of intended employment, up to three years. The period of intended employment should be indicated in the letter or similar statement supporting the application for admission and signed by the prospective employer.

Examples help to illustrate the appropriate period of admission for a Canadian TN nonimmigrant alien.

Example #1: A citizen of Canada applying for admission concurrently with an application for TN classification may present a letter from the prospective employer confirming that the intended period of employment will be for a period of three (3) years. The Canadian nonimmigrant alien may be admitted for a period of three years, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

Example #2: A citizen of Canada applying for admission concurrently with an application for TN classification may present a letter from the prospective employer confirming that the intended period of employment will be for a period of eighteen (18) months. The Canadian nonimmigrant alien may be admitted for a period of eighteen (18) months consistent with the intended period of employment, provided that the individual’s passport will remain valid throughout this period and the individual is otherwise admissible.

As a result of increased security concerns, U.S. Immigration Officials at the border have been directed to conduct more thorough inspections. You must ensure you have the necessary documentation to establish your identity and purpose of entry and prove that you are eligible for a TN Visa. This is the basic documentation requirement you must have:

Proof of citizenship (Canadian, Mexican or U.S)
Letter from your prospective employer
Job Title and detailed summary of your duties (job description)
Proof employment will be temporary; no more than 3 years
Arrangement of payment for your services
Proof you possess the required NAFTA Occupation credentials
Filing fee - $50 USD (price at the time of this publication)
Form I94 fee - $6 USD (price at the time of this publication)

Additional documentation may be required at the border for certain occupations. Good Luck, feel free to email us with any questions.

Today was to have been the deadline to end a Department of Homeland Security​ program reviewing cases of undocumented immigrants in Denver who pose no security risk to the country.

Despite that, government officials acknowledged Thursday they will continue to review 7,800 cases in Denver involving nonviolent immigrants who came to the U.S. as children or who have strong familial ties — including lesbians and gays — to decide whether they should be allowed to stay or officials should press forward with deportation proceedings.

The pilot program, launched six weeks ago in Denver's immigration courts, will continue until every case is reviewed, said U.S. Immigration and Customs Enforcement spokeswoman Barbara Gonzalez.

"Some of these cases are extremely voluminous, with thousands of pages, and it takes time for attorneys to review," Gonzalez said of the ongoing review. "It is not a sprint. It is about being careful. We know we are making an impact on human beings' lives."

The only thing that will change is that immigration judges will again begin hearing cases of immigrants who are not detained. Under the pilot program, the immigration judges were only concentrating on immigrants who were detained to make sure they dealt with the highest-priority cases.

In the meantime, Sujey Pando, a lesbian married to an American citizen, is waiting on the status of her immigration case and is nervous because she is aware of what she believes is a deadline and hasn't heard a word.

Pando, 34, is from Mexico and legally married her longtime partner Violeta Pando in Iowa in 2010. Sujey Pando was brought to the Denver area as a child by her mother, then kicked out of the family home at 16 after revealing she was gay.

In 2008, she was pulled over in Adams County for not using a turn signal. She didn't lie to the officer about her undocumented status. She has been fighting deportation since.

"She is not a danger to her community or national security, and she is not a high-priority case for removal," said her attorney, Lavi Soloway. "More than most people, she really does meet many of the guidelines and has some very compelling and sad facts that are part of her case that need to be weighed in this process. We are concerned that they are not reviewing the file or giving her the consideration for administrative closure."

On Aug. 18, Homeland Security Secretary Janet Napolitano announced the shift in policy and said it would free the courts to deal with violent offenders and true threats to national security.

Critics of the plan say it is a back door to amnesty.

On Aug. 19, a Denver immigration judge decided to delay a decision on whether to deport Pando, citing the policy changes announced by Napolitano the day before.

Pando, a restaurant service manager, submitted volumes of evidence of her abuse as a child and teenager coming to this country to the immigration court. She also provided affidavits from family and friends about her commitment to her marriage and the community.

When her case was delayed in August, Soloway advised her not to add more paperwork to the file but changed his mind last week and submitted another 76 pages of affidavits and evidence to support her case.

"I do think that this case meets the criteria for being closed and Sujey and Violeta should be able to go to sleep (tonight) knowing the threat of deportation is not hanging over them," Soloway said.

Continue reading "Denver Pilot Project Carries On Despite Deadline on Immigration Cases" »

This is an important decision for all employers with current H1B employees. The Department of Labor's Administrative Review Board (ARB) found that the time period it took for the employee to obtain a social security card, which the employee's employer required for their payroll system, was "nonproductive status." The employer was therefore required to pay wages for the two-week period that it took for the employee to obtain the social security card.

However, the ARB found that the employer did not owe back wages to the H-1B worker for the period between her arrival in the U.S. and the date she contacted her employer to inform them that she was in the U.S. The ARB also found that the employer was not required to pay wages to the H-1B worker for the time period in which she was unavailable for work as a result of personal matters such as opening a bank account, obtaining a car lease, securing a driver's license, and securing schooling and day care for her children. These were periods in which the H-1B worker was in voluntary nonproductive status.

The DOL has a regulation that states that an employer who files an H1B petition must begin to pay the sponsored worker the required LCA wage when the worker enters into employment. The DOL defines this as when the worker makes himself or herself available for employment or when the worker comes under the control of the employer.

Thus, an H1B employee meets this requirement and the wage obligation begins, in many situations, when the worker is not engaging in productive employment. This can include common situations, such as when the employee is available to start, but is waiting for an end-client assignment, is engaged in any type of training (whether in-house or from the employee's residence), is attending orientation sessions, and/or is interviewing with end-clients or customers for placement. Thus, employers that do not pay their H1B workers who have made themselves available or are in the employer's control, as explained above, can be subject to substantial back-wage assessments.

The New Year is a good time to tie up any loose ends, and make sure that one's company procedures and paperwork are in order. If you have further questions about H1B compliance, feel free to email us.

The following article covers CBP standards for accepting L-1 petitions for Canadians under NAFTA. The standards discuss the burden of proof, package completeness, review of the petition, and submission to USCIS by CBP.

With the institution of the North American Free Trade Agreement (NAFTA), the use of L-1 visas has been supplemented by the use of E-1 and E-2 visas. However, the L-1 can be easier to apply for because it requires less documentation and can be immediately obtained at the border and other Ports of Entry. The L-1 visa, therefore, continues to be a useful immigration tool for companies that do not qualify for E status.

1. The burden of proof for establishing eligibility rests with both the petitioner who is filing the petition; and the beneficiary, who is applying for admission.

2. CBP will review an I-129 petition submitted for an L-1 applicant to ensure the application is complete.

a. Two copies of the I-129 with original signatures on each copy.
b. Supporting documentation is included with the I-129 petition to establish the
petitioner and beneficiary are demonstrating that the petitioner and beneficiary meet
the requirements for the L-1 class of admission are:

-Qualifying entity:
-The applicant is coming to work for an entity in the U.S. that is the parent,
branch, affiliate, or subsidiary of the entity in the foreign country. ii. Qualifying capacity:
- Executive or Managerial.
-Specialized Knowledge. iii. Qualifying past employment:
- An alien who within the preceding three years has been employed abroad for one continuous year.
-Qualifying citizenship – the applicant is a citizen of Canada.

3. CBP will review the I-129 petition in accordance with 8 CFR 214.2(l)(17)(iv):

a. If a petition or certificate of eligibility submitted concurrently with an application for
admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return the I-129 petition to the applicant for admission in order to obtain the necessary documentation from the petitioner or for the deficiency to be overcome.

b. The fee to file the petition will be remitted at such time as the documentary or other deficiency is overcome.

c. If the petition or certificate of eligibility is clearly deniable, the CBP officer will accept the petition (with fee) and the petitioner shall be notified of the denial, the reasons for denial, and the right of appeal.

d. If a formal denial order cannot be issued by the port of entry, the petition with a recommendation for denial shall be forwarded to the appropriate U.S. Citizenship and Immigration Services (USCIS) Service Center for final action.

4. To ensure prompt processing by USCIS, including creating a Form I-797, Notice of Action confirming the adjudication result (e.g. approval of the L-1 classification and the dates of validity); sending the Form I-797 to the petitioner; and entry by USCIS into the Department of State’s Petition Information Management System (PIMS) to facilitate the issuance of L-2 (dependent of L-1) nonimmigrant visas for non-citizens of Canada, the completed I-129 petition package must be mailed by CBP to the USCIS Service Center after the petition has been adjudicated by CBP.

a. CBP will permit petitioners to prepare and CBP will accept a prepaid Express Mail Flat Rate Envelope submitted with the L-1 petition and an application for admission.
b. The prepaid mailer must to be addressed to either the USCIS California Service Center or the USCIS Vermont Service Center, depending on the location where the beneficiary will work.

The NAFTA provisions affect those applying for admission in B-1, E, L, or TN status. Citizens of Canada or Mexico applying for admission in other nonimmigrant categories do not benefit at all from NAFTA. Even those who do qualify under NAFTA must still meet the admission requirements under all other provisions of U.S. immigration law.

The NAFTA parties did not intend to harmonize their immigration regimes or create a common labor market or a passport union. Instead, each country intended to maintain its sovereignty over immigration in order to protect its domestic labor market and continue to drive competition.

We routinely escort our clients to the port of entry for TN and L cases, if you need support feel free to email us.

Some good News about the February Visa Bulletin. The employment-based, second preference (EB2) category cutoff date moves forward by a full year, to January 1, 2010 for India and China. This is actually very encouraging for many applicant out there.

The decision to dramatically advance the cutoff dates is based on USCIS reports of low rates for adjustment-of-status (I-485) filings, despite recent EB2 cutoff date advancement. This greatly expands the number of individuals who soon will be eligible to file Form I-485 toward becoming U.S. permanent residents. Nevertheless, visa numbers could stop advancing or even retrogress very soon. The logical thing to do is act fast and file if your number is current.

It is sad to see so many qualified well educated applicants, struggling to plan a future in the US. If the priority date system is not to change in the near future, expect more qualified talent leaving our shores to Europe, Canada and Australia. They know how to welcome qualified, well educated immigrants.

Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. We report some good news for many Visa Waiver Overstay clients that are married to US Citizens.

The American Immigration Lawyers Association presented the following question to the Service:

Members continue to report inconsistencies in the treatment of these cases. AILA requests that USCIS remind the field that immediate relatives admitted on a visa waiver are eligible to adjust and to release that guidance to the public, so that AILA members and stakeholders in general can address issues that may arise in field offices that are not adjudicating applications in a manner that is consistent with the guidance.

The USCIS Representative had this to say:

All field offices have been instructed to adjudicate I-485 applications filed by immediate relatives who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order.

Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for applicants who have been ordered removed under INA section 217. USCIS is in the process of drafting final guidance including an AFM update on this topic.

So there you have it, unless you are subject to a removal order, you can Adjust your status, even after a Visa Waiver overstay. We have been filing Appeals, talking to the Media and lobbying to make it happen. I am so pleased this unjust policy coming from the San Diego Office as well as other locations is now going to come to an end. Please share your stories with us if your district is still denying such cases.