Visa Lawyer Blog

Haitian F-1 students experiencing severe economic hardship from the Jan. 12, 2010 Haiti earthquake eligible for employment authorization. Immigration and Customs Enforcement (ICE) has approved special relief for certain F-1 Haitian students who have suffered severe economic hardship as result of the Jan. 12 earthquake in Haiti. This relief applies only to students who were lawfully present in the United States in F-1 status on Jan. 12, and enrolled in an institution that is certified by ICE's Student and Exchange Visitor Program.

The suspension of certain regulatory requirements, by notice in the federal register, allows eligible Haitian F- 1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status. F-1 students granted employment authorization by means of this notice will be deemed to be engaged in a full course of study if they meet the minimum course-load requirements specified in the notice.

Proposals have been made in Congress for many years to confer an opportunity for the young students to become legalized. These proposals, commonly known as the “Dream Act”, so far have not gone too far in the legislative process. The terms of the Dream Act various. According to the latest proposal in 2009, a person must be between the ages of 12 and 35 when the law was enacted, must have arrived in the United States before the age of 16, must have resided continuously in the United States for at least five (5) consecutive years since the date of their arrival, must have graduated from a U.S. High School or obtained a General Education Diploma GED, and must have good moral character. If eligible, these individuals will be able to obtain temporary residency for a six year period.

There have been many instances in which immigrant students were released from detention after they were arrested for being without immigration status in the U.S. There is a clear federal policy to suspend or defer enforcement efforts on them, according to various reports. These students were brought to the United States by their parents who did not have legal status. They attended schools and adopted an American lifestyle. Many are now high school graduates but have difficulties continuing their education on account of their illegal status. Although the current immigration policy is temporarily sparing these youngsters from deportation, their future will remain uncertain without actual changes in immigration law. Within the six year period, a qualified student must have acquired a two-year degree from a community college or completed 2 years of a program for a bachelor’s degree or higher degree in the United States. Alternatively, he or she may also serve in the military for at least two years. If the applicant fails to meet one of these three requirements, the student shall revert back to the immigration status that he or she had immediately prior to receiving conditional permanent resident status.

Furthermore, although the applicant would not be eligible for Pell grants, they would be entitled to apply for student loans and work study. However, should these students commit a serious crime or a drug-related violation during these six years, they would lose their conditional status and subject to deportation. Upon successful completion of the requirements at the end of the six years, the applicant will be eligible for lawful permanent status. Legalizing these young students would actually bring in a new pool of educated people to the workforce, reduce costs associated with social problems, and foster family unity. If passed, the law will benefit more than 700,000 individuals throughout the United States. Energetic and educated, these students have become increasingly vocal in fighting for their rights.

We all know by now that Requests for Evidence in O1, H1, L1 and P cases have almost doubled in the past 12 months. It has now become a matter of practice at my firm, to let clients know that a Request for Evidence will most likely happen in their case. This is frustrating to us lawyers, and creating extreme hardship to clients.

The situation is so bad with denials coming from the California Service Center that the LA Times covered this issue in a recent story:

The nation's immigration chief has launched a effort to quell the outcry from Hollywood and the performing arts community about a spike in visa denials, processing delays and requests for evidence to support their petitions to bring in leading foreign artists for U.S. performances.

In the last year, immigration attorneys across the nation have loudly complained about mounting roadblocks for performance visas from the California service center, which processes petitions for so-called O and P visas for artists and researchers of extraordinary ability.

The Skirball Cultural Center in Los Angeles had to cancel scheduled performances last year of an Argentine music group because California immigration officials challenged whether its fusion of Jewish klezmer music and tango met the requirement to be "culturally unique."

What could be a reason for this war declaration coming from the California Service Center? According to Greg Siskind it is a mere job security issue:"

The U.S. Citizenship & Immigration Service says no crackdown is afoot. 'We haven't changed the way that we do our business over the course of the past few years,' says agency spokesman Christopher Bentley.

Of course, the statistics show otherwise. One very senior former USCIS confided in me that he believes this is less about an anti-immigrant mood at USCIS and more about simple job security. The overall number of applications being filed at the agency is down dramatically due to the recession and issuing requests for evidence is one for examiners to keep themselves busy.

I have no doubt that this is happening. The evidence requests are themselves the best evidence of what should be considered gross malfeasance on the part of USCIS examiners. Applicants routinely get request for documents that were provided already or are clearly irrelevant. In premium processing cases, evidence requests often come on the last day USCIS has to adjudicate the case. Enticing people to pay an extra $1000 to get speedy processing and then deliberately delaying their cases is a form of fraud - perhaps theft - in my opinion. USCIS should be regularly auditing evidence requests and also soliciting feedback from the applicant community so it can crackdown on such illegal behavior.

The California service center's denial rates for O visas, which apply to individuals, increased from 9.6% in the 2008 fiscal year to 19.6% this year. Denial rates for P visas, which apply to groups, jumped from 11.1% in 2008 to 26.8% this year. Requests for evidence also grew, from 16.2% of cases in 2008 to 37.5% for individual visas and from 21% to 44.3 % for group visas during that same period. The number for H1B visa RFE's and denials is even higher.

As attorneys we now have to adjust to the way we prepare petitions. Instead of preparing cases with the best supporting documents possible, we now have to anticipate the open door for denials even when the candidate is very qualified and meets the standard of thew law. If the trend will continue, expect more qualified workers and excellent artists to stop coming to our country, our loss.

This is a recent update from the AILA Rome Chapter for the benefit of our readers. The State Department has substantially rewritten the FAM provisions relating to physical or mental disorders as medical grounds of inadmissibility. These significant changes, set forth at 9 FAM 40.11 N11, focus on physical or mental disorders with harmful behavior, and on substance-related disorders, corresponding to INA 212(a)(1)(A)(iii) and (iv), respectively.

The following is a summary of these sweeping revisions.

Introduction

As before, the mere presence of a physical or mental disorder does not by itself render a visa applicant inadmissible to the United States under 212(a)(1)(A)(iii). The trigger to inadmissibility is the presence of associated harmful behavior.

Key Concepts of Mental Health

In this new section, the Department defines the key concepts of physical and mental health disorders:

A "physical disorder" is a clinically diagnosed medical condition where the focus of attention is physical manifestations.

A "mental disorder" is a health condition characterized by alterations in thinking, mood or behavior.

"Harmful behavior" is an action associated with a physical or mental disorder that causes (or has caused) one or more of the following:

1. Serious injury (psychological or physical) to the foreign national or others. An example of harmful behavior to the foreign national is attempted suicide. An example of harmful behavior to others is pedophilia.
2. A serious threat to the health or safety of the foreign national or others. An example of a serious threat to both the foreign national and to others is driving while intoxicated.
3. Major property damage.

NOTE: The Department emphasizes the following principle: Only harmful behavior that is associated with a physical or mental disorder is relevant for the purpose of determining a medical inadmissibility.

A "substance-related disorder" can involve one of the following:

1. Substance dependence - compulsive long-term use of alcohol or other psychoactive substance despite significant problems (physical, social, and others).
2. Substance abuse - a pattern of recurrent use of alcohol or other psychoactive substance despite adverse consequences or impairment.

Remission in the context of mental or substance-related disorders is defined as "a period of at least 12 months during which no substance use or associated harmful behavior have occurred."

Class "A" medical conditions are those which render a visa applicant ineligible for a visa.

Class "B" medical conditions do not render a visa applicant ineligible for a visa, even though the applicant has a disease, disability or abnormality amounting to a substantial departure from well-being.

Alcohol Abuse or Dependence

The FAM changes stress that alcohol abuse or alcohol dependence constitutes a medical condition which can lead to inadmissibility. That said, a panel physician's diagnosis of alcohol abuse or dependence alone does not make an applicant ineligible to receive a visa unless there is evidence of associated harmful behavior which has, or is likely to pose a threat to the property, safety or welfare of the foreign national or others.

Consular officers are instructed to refer nonimmigrant and immigrant visa applicants to panel physicians if the applicant has a single alcohol-related arrest or conviction within the past five years, or if the applicant has two or more such arrests or convictions within the past decade. Officers should also refer applicants to panel physicians if, in the absence of DUI arrests or convictions, there is any other evidence to suggest that the visa applicant has an alcohol problem.

Role of the Panel Physician

Panel physicians have a central role in evaluating the existence of a physical or mental disorder or a substance-related disorder that would render an applicant ineligible for a visa. In performing a medical examination, the panel physician is responsible (inter alia) for identifying and diagnosing physical or mental disorders (including alcohol-related disorders); identifying harmful behavior associated with a disorder; and determining the remission status of any previously diagnosed disorder.

Class "A" or Class "B" Medical Conditions

Panel physicians may make the following diagnoses with regard to applicants referred for examination:

Class "A": The applicant has a physical or mental disorder with associated harmful behavior.

Class "A": The applicant has a disorder characterized by substance abuse or dependence.

Class "B": The applicant has a physical or mental disorder with no associated harmful behavior.

Class "B": The applicant has a history of a physical or mental disorder with associated harmful behavior which is unlikely to recur.

Class "B": The applicant's substance abuse or dependence is in full remission.

Neither "A" nor "B": The applicant has not been diagnosed as having a physical or mental disorder or a substance-related disorder.

Waivers for Immigrant Visa Applicants

An immigrant visa applicant who is determined to have a communicable disease of public health significance may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(i).

An immigrant visa applicant who objects on religious or moral grounds to receiving required vaccinations against vaccine-preventable diseases may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(ii).

An immigrant visa applicant who is determined to have a physical or mental disorder with associated harmful behavior may be eligible for a waiver of the inadmissibility set forth in INA 212(a)(1)(A)(iii).

An immigrant visa applicant diagnosed with substance abuse or addiction is NOT eligible for waiver relief of the inadmissibility set forth in INA 212(a)(1)(A)(iv).

Waivers for Nonimmigrant Visa Applicants

Consular officers may recommend waivers per 212(d)(3)(A) for any of the medical-related grounds of inadmissibility set forth in 212(a)(1)(A).

The Kentucky Consular Center (KCC) has begun to audit certain nonimmigrant petitions filed with U.S. Citizenship and Immigration Services (USCIS) to verify information submitted in the petitions. Additionally, KCC is piloting a program wherein information about the beneficiaries and the proposed U.S. employment is verified. KCC has made and will continue to make unannounced phone calls to petitioners to verify such information.

Questions include, but are not limited to:

1. Whether the petitioner, in fact, submitted the petition;
2. When the petitioner was incorporated;
3. The physical location of the petitioner;
4. Number of employees;
5. Names of shareholders;
6. Location of Attorney of Record;
7. General information regarding the petitioner's operations and business plan.

Employers should be consistent when submitting information to the government, keep good records on file and update counsel of any corporate changes.

USCIS has released a new interim memo which clarified the method of analysis by USCIS officers that they must use in adjudicating Form I-140, Immigrant Petition for Alien Workers, filed for 1) Alien of Extraordinary Ability EB1A cases; 2) Outstanding Professor or Researcher EB1B cases; and 3) Alien of Exceptional Ability EB2 cases. The requirements for these types of I-140 petitions have not changed but this new method of evaluating the merits of cases may adversely impact those applying for immigration in these categories. This interim memo is a response to the U.S. 9th Circuit Court of Appeals decision in Kazarian v. USCIS on March 4, 2010. In the Kazarian ruling, the court held that USCIS was being too strict in deciding EB1A petitions by requiring extensive citation evidence and specific types of peer review work in order to meet the EB1A criteria. However, the court did rule that USCIS could consider evidence such as extensive citations in making a final merits review of the case to determine whether an alien is at the very top of his or her field.

In essence, the new USCIS interim memo breaks the evaluation process up into two parts – 1) evaluating whether the applicant meets the baseline criteria for the immigration category and 2) determining whether the applicant’s evidence demonstrates the required high level of expertise for the immigration category. In the second part of the review process the USCIS will evaluate the evidence to see if, as a whole, it proves by a preponderance of the evidence that the applicant is at the very top of his or her field of endeavor. This article will explain how the evaluation will be handled for affected EB1A and EB1B I-140 petitions.

For the first step in evaluating EB1A cases, the officer will check to see if evidence is provided to show that the applicant has met at least three of the following ten criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

7. Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

9. Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field;

10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

After the officer has determined by a preponderance of the evidence that at least three of these criterion have been met, he or she moves into the second part of the review. For EB1A cases, the second part of the review involves determining whether the applicant has achieved a level of expertise indicating that he or she is one of a small percentage who has risen to the very top of the field of endeavor, he or she has shown sustained national or international acclaim, and his or her achievements have been recognized in the field of expertise. This basically means that the officer will look at all the evidence as a whole and determine if the case is approvable. This new standard may decrease the number of approved cases since, by implementing this secondary review process, USCIS officers have the discretion to deny cases even if three EB1A criteria have been technically met.

New Evaluation Process For EB1B Cases

For the first step in evaluating EB1B cases, the officer will check to see if evidence is provided to show that the applicant has met at least two of the following six criteria:

1. Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

3. Published material about the alien in professional or major trade publications or other major media relating to the alien's work in the field for which classification is sought;

4. Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought;

5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

6. Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

For the second part of the review for EB1B cases, the officer will make a final merit determination on whether or not the applicant has, by a preponderance of the evidence, demonstrated that he or she is recognized internationally as outstanding in a specific academic area. Therefore, simply showing that two of the criterion have been met does not necessarily mean that the case will be approved. This, in turn, greatly expands the USCIS officer’s discretion in deciding which cases to approve.

Prior to this USCIS memo, the evidence was evaluated only in the context of meeting the necessary criteria for each type of case. Now by adding a second “final determination on the merits” phase of review, USCIS officers have more flexibility in denying cases or issuing Request For Evidence notices even if the baseline criteria has been met. This memo essentially gives the USCIS officer wider discretion in adjudicating EB1 cases since it has added a new level of review which follows a fairly subjective standard. As a result it is very possible that immigration through the EB1A, EB1B, and EB2 Exceptional Ability categories will become more difficult than it has been in the past. However, due to the recent immigrant visa retrogression for people born in India and China, there is an increasing number of Chinese and Indians who choose to apply through the EB1A or EB1B categories rather than wait for visa availability in the EB2 category. Hence, we recommend to consult a qualified immigration professional before proceeding with EB1 and EB2 cases.

ICE officials provided a copy of a new policy memo dated Aug. 20 that instructs government attorneys to review the court cases of people with pending applications to adjust status based on their relation to a U.S. citizen. ICE estimates in the memo that the effort could affect up to 17,000 cases.

The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records, according to several sources familiar with the efforts.

Opponents of illegal immigration were critical of the dismissals.

"They've made clear that they have no interest in enforcing immigration laws against people who are not convicted criminals," said Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for strict controls.

In a June 30 memo, ICE Assistant Secretary John Morton outlined the agency's priorities, saying it had the capacity to remove about 400,000 illegal immigrants annually — about 4 percent of the estimated illegal immigrant population in the country. The memo outlines priorities for the detention and removal system, putting criminals and threats to national security at the top of the list.

We expect more cases terminations across the United States in the next several months.

This is a recent USCIS update announcing that any U.S. citizen seeking to adopt a Nepali child, whose case is not affected by the suspension of processing cases involving Nepali children claimed to have been found abandoned, should file the Form I-600 with the U.S. Embassy in Kathmandu.

This change in the filing location for the Form I-600 petitions applies to two groups of prospective adoptive parents who are not affected by the suspension. The first group is those who received a referral letter from the Government of Nepal’s Ministry of Women, Children and Social Welfare before Aug. 6, 2010, informing them of a proposed match of an abandoned child. The second group is those who seek to adopt Nepali children who were relinquished by known parent(s) and whose identity and relationship can be confirmed.

USCIS strongly encourages prospective adoptive parents to follow this procedure for their own benefit, based on growing concerns about unreliable documents, irregularities in the methods used to identify children for adoption in Nepal, and the resulting difficulties in classifying those children as orphans under U.S. immigration law. Please see the Aug. 6, 2010 announcement online regarding the suspension.

Read more here...

U.S. Citizenship and Immigration Services will celebrate the grand opening of its new field office and application support center in Bedford on Thursday, Sept. 2, with a ribbon-cutting ceremony, naturalization ceremony and tours of the facility. USCIS Associate Regional Director Shelley Goodwin will preside during the naturalization ceremony and will administer the Oath of Allegiance to 25 citizenship candidates. She will be joined by USCIS’ Boston District Director Denis Riordan and USCIS’ Manchester Field Office Director Simon Abi Nader.

Gov. John Lynch will join USCIS and delivering remarks for the special naturalization ceremony. Joining USCIS for the ribbon-cutting ceremony will be Bedford Town Manager Russell Marcoux, Mayor of Manchester Ted Gatsas and Glenn C. Rotondo, acting regional administrator of General Services Administration, New England region.

The new office, at 9 Ridgewood Road, will provide a range of immigration services, including naturalization interviews, lawful permanent resident processing, fingerprinting and photographic services and is well-suited to serve the area’s immigrant community. The new facility replaces the former Manchester location on Canal Street. The new office is based on a national model for new USCIS office locations throughout the country.

The new building is being dedicated to Sgt. Major Abraham Cohn, Civil War Medal of Honor recipient. Cohn was born in 1832 in Guttentag, an East Prussian town. He immigrated to the U.S. in the mid-19th century and fought for the Union during the Civil War serving with the 6th New Hampshire Infantry Volunteers. He was awarded the Medal of Honor “for conspicuous gallantry” in the Battle of the Wilderness (May 6, 1864) and “for bravery & coolness” at the Battle of the Crater (July 30, 1864).

The 25 citizenship candidates originate from 13 countries: Bosnia-Herzegovina, Brazil, China, France, Iran, Kosovo, Malaysia, Pakistan, Poland, Russia, Sudan, Thailand and United Kingdom. The ribbon cutting will take place at 11 a.m. with the naturalization ceremony to follow at 1 p.m.

Great Analysis from AILA to share with our readers. PL 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. Petitioners subject to this new fee include employers with more than 50 employees in the U.S., for which 50% of their workforce is on H and L visas. The fee will remain in effect through September 30, 2014.

USCIS indicated that Vermont Service Center and California Service Center were instructed to hold any H or L petitions sent after that date, pending guidance on how to determine whether the petitioner is subject to the new fee. USCIS will be modifying the I-129 or H-1B Data Collection Form to include information on whether this fee applies.

In the interim, USCIS suggested that petitioners could proactively include a “certification” regarding the fee, including a notation of whether the fee is required in bold capital letters at the top of the cover letter. The sample certification that the petitioner is not obligated to pay the fee would be:

“[Name of employer] has over [insert total US employees] employees in the United States, of whom fewer than [insert number or percent] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”

We will update our readers as we receive more guidance on this new change.

USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 8/20/10, approximately 33,900 H-1B cap-subject petitions were receipted. USCIS has receipted 12,600 H-1B petitions for aliens with advanced degrees. This is a major jump from the last update of August 13, 2010 where only 29,700 filings were reported.

Is this trend likely to continue? We think so, expect visas to run out by the early weeks of December.

Great Videos to share from the U.S. Consulate General in Ciudad Juarez on what to expect when going to the Consulate for a visa interview as well as a video on how to avoid people who engage in unlawful practices outside the consulate, such as people who sell false documents.

Here are links to both videos:

http://www.youtube.com/user/pasjuarez

http://www.youtube.com/user/pasjuarez#p/u/3/KCft0XrCBg8

Despite the deployment of thousands of Mexican soldiers and a reinforced contingent of Federal Police ostensibly to suppress the criminal gangs, violence has only worsened in Ciudad Juarez since January 2008, when the long-simmering drug war exploded in fury. More than 4,600 people have been slain, and anywhere from 30,000 to 420,000 people have fled from a city that was nudging 1.5 million inhabitants prior to the war, according to wildly varied estimates.

We always tell our clients to be very careful when spending time in the City before and during the visa interviews.