Visa Lawyer Blog

Sen. Rand Paul (R-Ky.) is roiling the Senate immigration debate by offering several amendments that could give him an edge in a future Republican presidential primary. Paul, who could square off against Sen. Marco Rubio (R-Fla.), one of the bill’s primary authors, in the 2016 GOP presidential primary, is taking aim at three of the most controversial areas of the bill, according to Senate aides familiar with the measures

His amendments puts pressure on Senate Republican Leader Mitch McConnell (Ky.), who says he wants to pass immigration reform but has not yet committed to voting for the 1,075-page Senate bill. McConnell faces reelection in 2014; while he does not yet have a credible primary challenger, he has sought to shore up his right flank by maintaining close ties to Paul.

Paul’s most ambitious proposal would eliminate the pathway to citizenship for 11 million illegal immigrants and lift the caps on guest workers. It would provide immigrant workers to employers who can demonstrate need, but immigrants would have to apply for legal permanent residency and citizenship through the existing lines of their native countries. Paul is expected to file that amendment this week.

Another measure, Paul’s “Trust but Verify” amendment, would give Congress — and not Homeland Security Secretary Janet Napolitano — ultimate authority on deciding when the southern border is secure. Under this plan, immigration reform would not proceed until Congress votes on whether several criteria have been met. These objectives would include the completion of a comprehensive system to track visa entries and exits at all points of entry — not just air and sea ports as mandated by the broader bill — and law enforcement achieving a 95 percent apprehension rate of illegal entrants and the Census Bureau would have to show an insignificant flow of new immigrants entering the country illegally. Paul has already filed this amendment.

Other Republican members of the Gang of Eight have opposed giving Congress authority to vote on whether border security metrics have been met because they fear it would politicize the process. Democrats warn that opponents of the path to citizenship would use it to delay permanent legal residency for millions of immigrants.

In adding his own amendments to the bill, Sen. Paul has shifted the spotlight to what other major senators will decide. Sen. Rubio is uncommitted on the issue. He said he was not firmly for, or against, giving Congress future authority on assessing border security. His focus, however, is putting a specific border security plan in the Senate bill so that colleagues have a sense of firm metrics being put in place and Napolitano has less discretion.

Robert Haus, an Iowa-based Republican strategist who worked for Texas Gov. Rick Perry’s (R) 2012 presidential campaign, said Paul’s amendment would give him a political edge. “Yes, I think it probably does. Whether or not that early advantage holds sway remains to be seen,” Haus said. “It at least gives him a calling card and talking point to start some of that early work. I don’t know how it functionally works to have Congress certify. Congress can barely tie its own shoelaces.” A spokesman for Rubio declined to comment on Paul’s amendments. Rubio could be helped, however, by Sen. Lindsey Graham’s (R-S.C.) strong support for the bill.

“There are conservative Republicans, moderate Republicans and independents who just want to get this past us, find a solution and move on to some of the other issues Republicans really care about,” said Byars, who has helped raised money for Rubio. But Deace said many conservatives fear GOP leaders are alienating their party’s base to ingratiate themselves with Hispanics, who make up a small percentage of the electorate and tend to vote for Democrats.

Paul's last amendment is designed to ensure that immigrants with provisional legal status do not vote. It will likely have resonance in the wake of Monday’s Supreme Court decision striking down an Arizona law requiring people to prove their citizenship when registering to vote. Paul’s proposal would make federal election funding contingent on states checking voter rolls against visa databases to ensure people with provisional legal status are not voting along with citizens. Immigrants would be barred from receiving permanent legal status if they were to vote as registered provisional immigrants.

While Paul's amendments strike a cord with the more conservative Republican base on immigration reform, the amendments appear to focus on issues that will delay rather than speed up the process for the bill to be passed, all while allowing him to gain more leverage with the more conservative core of voters. It remains to be seen whether these amendment proposals are merely posturing by Sen. Paul or whether they will continue the debate on the major issues of the pathway to citizenship and border security.

On June 11, 2013, AILA NBC Liaison Committee released a practice pointer, specified procedures to follow in filling and renewing an Adjustment of Status (I-485) application. When you are actually applying, make sure you check with your local immigration courts and USCIS field offices to see if there are case-specific variations to the following general procedures.

I. Initial filings

An adjustment of status (Form I-485) application can be filed by those who are in removal proceedings and are eligible, or become eligible, to have their status adjusted in one or two ways. Usually, the immigration court will determine the option applicant must follow.

Some immigration judges require the Form I-485 application be filed before the termination of your removal proceeding. In this situation:

1) The original I-485 must be filed with the immigration court.
2) A copy of the application, along with the filing fees or a fee waiver granted by the immigration judge, and other documentation, should be sent to the Texas Service Center (TSC).
3) You will then receive a USCIS issued fee receipt notice showing that you have paid the application fee (unless waived) and the biometrics fee, assigned a receipt number, and scheduled for an initial biometrics appointment.
4) After receive the receipt notice from USCIS, you should file a copy of the receipt notice with the court along with a motion to terminate for adjustment of status with USCIS.

Once the immigration judge issued an order terminating removal proceedings, your file will be transferred to the local USCIS office for adjudication.

Other immigration judges will terminate proceedings without proof of filing the I-485. In this situation you may:

1) File a joint motion to terminate proceedings with ICE OCC;
2) Request termination at a master calendar hearing; or
3) File a motion to terminate proceedings.

If the immigration judge issues you an order terminating proceedings, you should file Form I-485 with USCIS by following the I-485 Form instructions, and include a legible copy of the immigration judge’s order.

Note: if the case is administratively closed by the immigration judge, jurisdiction over the Form I-485 remains with the immigration judge. USCIS may not adjudicate the Form I-485 in this situation.

II. Renewals
If USCIS denies an I-485, you can generally renew your adjustment applications before an immigration judge if you are placed in removal proceedings.

You should then file a copy of the adjustment of status application that was originally filed with USCIS with the immigration court, in addition to all necessary forms for alternative types of relief that the client may be requesting. No new filing or biometric fees need to be paid in renewing proceedings. However, you should update their biometrics and/or the medical exam if either has expired.

III. Procedures after I-485 approval

When an immigration judge has approved an I-485, attorneys should take the following steps to ensure that the client receives his or her I-551, Permanent Resident Card:

1) Request that ICE OCC transfer the file to the appropriate USCIS field office.
2) Schedule an InfoPass appointment, bring the client and the original immigration court order granting adjustment of status to the field office, and request that USCIS issue evidence of lawful status to your client. You should also bring the client’s valid passport, or, in the event that the client does not have a valid passport, bring two passport pictures and photo identification so that USCIS can prepare an I-94 with an ADIT stamp.
3) Request that the A-file be sent to the Texas Card Production office for production of an I-551, Permanent Resident Card.

The USCIS field office will want to have the A-file from ICE to review the immigration judge’s order. Once the USCIS field office is satisfied that the order is the actual order issued by the immigration judge, the file should be transferred for I-551 card production.

If you have questions, feel free to email us.

The Senate pushed contentious immigration legislation over early procedural hurdles with deceptive ease on Tuesday as President Barack Obama insisted the "moment is now" to give 11 million immigrants in the United States illegally a chance at citizenship. As a full debate and suggested amendments are made to the bill, there are several points to consider as the Senate moves closer to voting on a bill that will bring comprehensive immigration reform.

- A closed border does not facilitate a robust immigration system. Piling on additional border-enforcement measures that are grounded more in politics than effective law enforcement is a waste of resources, and ignores the fact that ending illegal immigration requires a balance of enforcement measures, new immigration programs for future labor needs, and a working E-Verify system. Texas Sen. John Cornyn has mentioned the need for stronger borders, including 90% apprehension rates at our border entries.

Also, while there is a need for secure borders, there is also a need for further streamlining and efficiently facilitating the daily cross-border flows of people, goods, and services important to the critical economic relationships between the United States and Mexico and Canada.

- Triggers must be reasonable, not designed to derail legalization. The legalization provisions of the bill should not be held hostage to border triggers that set unrealistic goals or impose overly burdensome procedures. Such triggers unnecessarily hold up the important process of bringing millions of undocumented individuals out of the shadows. Border security and legalization go hand in hand. We should not delay identifying and documenting those who reside in our country.

- Legalizing more than 11 million undocumented immigrants is an economic, social, and moral imperative. Making the process simple, straightforward, and fair means no unnecessary requirements, reasonable application procedures, realistic time frames, and strong family protections. Efforts to undermine or weaken the current proposal or to prevent these individuals from becoming lawful permanent residents, thus creating a permanent underclass with no opportunity for citizenship, would be a mistake of historic proportions.

- Immigrants must have the opportunity to fairly present their cases. A fair and just immigration system includes ensuring access to counsel for immigrants unable to represent themselves, limits on detention, and proportionate penalties for immigration violations. The temptation to continue to make immigration laws “tougher” without any moderation or respect for case-by-case decision-making must be avoided. For more than 20 years, Congress’s solution to immigration problems has been to layer on more punitive measures, ultimately creating a system that is often unbalanced and unfair. S. 744 attempts to restore some of the fundamental principles of fairness, due process, and proportional punishment that are the hallmark of the American judicial system.

- The Department of Homeland Security (DHS) should have discretion to use its resources wisely. We need smart security measures that actually work, not high-priced, politically driven strategies that do not. DHS must be given the discretion to deploy resources and implement border-security policies that are based on sound, effective law-enforcement strategies and not political theater. In order to achieve maximum effectiveness, DHS must have discretion to develop strategies that are tailored to the current border challenges and employ cutting-edge technology.

- The United States needs a workable, efficient, and flexible immigration system that responds to the rapidly changing demands of a 21st century economy, technologies, and migration patterns. People live and work and innovate in ways that are different than they were 20 years ago, and yet our immigration system continues to operate on a series of static quotas and rigid requirements that ignore advances in every sector of our economy and the way we live today. We can protect the wages and working conditions of all workers without sacrificing business opportunities.

The two procedural votes had the effect of placing the bill formally before the Senate and open for amendments. Both drew more than 80 votes, reflecting a bipartisan desire to have the debate that now is expected to consume three weeks. With these points above in mind, the Senate will be debating back and forth on which principles the bill should focus on before it reaches the House for its vote. President Obama is right that in the end, our government should work to have a bill passed by the end of Summer, so the next few weeks of debate should give some idea of whether that will become a reality or not.

AILA recently released a great summary about responding to a Notice of I-9 inspection, here is a brief summary.

A company’s Employment Eligibility Verification Forms, also known as Form I-9, is used to verify employee’s identity and employment authorization. Employers must complete Form I-9 to document verification of the identity and employment authorization of each new employee (both citizen and noncitizen) hired after November 6, 1986, to work in the United States.

Immigration and Customs Enforcement (ICE) is authorized to issue a Notice of Inspection (NOI) and any accompanying subpoenas from ICE, to audit a company’s I-9 forms. Although ICE can issue both, it is more common that you will get an NOI with a document list. Since government investigations and audits can become complicated and lead to serious consequences, many companies will panic. It is important for the company to seek a counsel as soon as possible to assist you throughout the process. This article provided you following tips in responding to a Form I-9 Notice of Inspection:

I. Treat ICE agent seriously

NOI is a government action and is a serious process to ensure a company’s compliance with the immigration laws. As such, it should be treated with due respect and not be treated as a “friendly” exchange of documents. ICE agents can be very friendly and chatty. This might often leading employers to inadvertently supply adverse information that becomes part of the investigation record.

II. You will have three days to proceed, unless extension is granted

An employer served with an NOI is given three business days to turn over the requested documents to ICE. Even if you believe that the I-9 forms are in order, take the time to review all I-9s and cross-check them against the employee roster. Once the Forms I-9 and supporting documents are turned over to the government, they cannot be taken back.

While it is important to never waive the three day notice to produce the Forms I-9, it is equally important to not assume that you will obtain an extension of the three days to turn over the requested documents. While it will not hurt to request an extension, whether or not it is granted depends on the specific ICE office and agent handling the case. If an extension is needed, submit a request together with information as to the reason the extension is needed and a reasonable proposed timeline for when the employer can comply with the NOI.

III. You should carefully read the NOI and any accompanying subpoena

1) To understand the scope of the request.

It is essential to understanding the scope of the request, as often the NOI goes beyond a simple request for the company’s I-9s. Note that there are different versions of the NOI issued by ICE. Some are extremely vague and others are very specific. In addition, an administrative subpoena can also be drafted in a number of ways.

2) To understand whether the request is for both current and terminated employees.

Requests for I-9s for terminated employees do not always correspond to the employer’s retention requirements. If the NOI requests a subset of I‐9s for former employees that are required to be retained, the employer should only provide that subset. If the NOI requests I‐9s beyond those that are required to be retained, consider providing (with an explanation) only those which the employer is required to retain.

3) To understand the timeframes covered by the NOI.

You only need to provide documentation fall within the timeframes covered by the NOI. Provide only the documentation necessary for inspection of the company’s I-9s. If you believe documents are not relevant to the I‐9 audit, raise that with the agent. Often ICE agents will ask for many items, but that does not mean you must provide everything.

IV. Reach out to the agent or auditor

The ICE agent will provide his or her contact information or business card at the time the NOI is served. Every ICE agent handles audits differently and it is important to know the process that the agent will follow. Inquire about timeline, expectations and process.

V. Consider making corrections to the I-9s before producing them to ICE

Unless it violates local ICE rules or practice, consider correcting or supplementing deficient I-9s before turning them over to the government. In some jurisdictions, ICE will accept corrections on existing I-9s or new I-9s that were completed after issuance of the NOI. If you take this approach, keep the following considerations in mind:

• Be sure that you know enough about the rules of the ICE field office to ensure that you are not aggravating rather than mitigating the problems;

• Be sure there is sufficient time for you to review the I‐9s to identify any errors, and for the employee or employer to make meaningful and accurate corrections;

• If you correct existing I‐9s, you should make any changes in a manner that makes it absolutely clear what the changes are, who made the corrections, and when. Only the employee should make changes to Section 1. Changes to Section 2 should be made only by an authorized representative of the employer. The changes to Section 2 should be based on actual documents and knowledge, and not on assumptions or information provided by colleagues.

• All changes should be made in a different color ink than that which was used on the original I‐9 and should be initialed and marked with the date that the correction is made.

VI. Document everything turned over to ICE

ICE agents will take the original I-9 forms off-site. Therefore, the employer should make a complete copy of all I-9 forms and documentation that are given to ICE and request an inventory receipt from the agent. This is essential as it is the only way to prove which documents the employer turned over, which may be an issue later in the process. In addition, it is often a good strategy to put responses to any questions in writing and to confirm verbal communications with an e-mail or letter.

VII. Seek legal consultation at early stage of the process

Typically, the best practice is for the attorney to be the intermediary, not to have the employer communicate directly with ICE. An attorney will help you determine the documents required, the format in which the information should be provided, the scope of the NOI, negotiation of time and date the ICE agent will be returning to pick up the forms, etc.

If you need any legal advice on how to handle I-9 forms to avoid confusion and to proper respond to ICE’s Notice of Inspection, please contact our office.

Over the past couple of years, the immigration service center has increased the number of requests for evidence (RFE) they issue on most non-immigrant worker visas. Recently, our office got approved a request for evidence on an L-1B, intracompany transferee specialized knowledge.

The L-1B, intracompany, transferee specialized knowledge visa is used by companies transferring an employee to the US company to work in a position that, as you might have guessed, requires specialized knowledge. The requirements are pretty vague, since immigration defines specialized knowledge as "information and experience about the company’s products, services, research, equipment, techniques, or interests and their applications in international markets. A “specialized knowledge” employee has an advanced level of knowledge or expertise in the organization's processes and procedures.

This specialized knowledge must be required to carry out the duties of the position with the U.S. affiliated company." It becomes the burden of the petitioner to demonstrate how the employee in question holds specialized knowledge of the company's products, services, equipment and so forth. This burden can prove difficult at times since it is usually clear to the employer why the person they are seeking to transfer to the US office has the specialized knowledge.

Part of a successful petition for an L-1B visa is demonstrating that the company's product, services, equipment, or interests require specialized knowledge, the employee has the requisite specialized knowledge and no one else in the US or foreign office has that knowledge or can easily attain that knowledge to carry out that role.

Our client came to us because the initial filing on their L-1B petition received an RFE asking for additional evidence to establish how the beneficiary met the requirements of an employee with specialized knowledge. The RFE was lengthy since it questioned everything about the petition from the position's requiring specialized knowledge to the companies meeting the transfer requirements.

Qualifying relationship between the companies

The first points to address were the qualifying relationship between the companies for transferring the employee. In particular the RFE requested documentation to establish the relationship through the submission of documents like stock certificates, bank statements, wire transfers, stock ledgers, and so forth. It was also requested that a breakdown of the ownership of the foreign company be submitted to demonstrate that the US company was the parent company. By providing these documents in the initial petition, the issue would not have been raised, but in some cases where ownership changes hands it becomes difficult for immigration to determine that the relationship still exists. In our case it was possible to show through those documents that the relationship still existed between the parent and foreign company.

Continue reading "L1 Visa Lawyer: Overcoming an L-1B Request for Evidence Success Case" »

As more and more immigrant families and communities are torn apart by current U.S. detention and deportation policies, it is crucial that that everyone concerned -- citizens, community members, friends and family -- stand up and speak out on these issues. Great action by the Detention Watch Network for Father's Day:

Organize a teach-in or educational event about detention in your community
Organize a public action, vigil or march
Join an action in your community
Watch and share a video about detention

For more information and to add your Father’s Day event to our calendar, e-mail Catalina Nieto at cnieto@detentionwatchnetwork.org

Keep Families Together, Stop Detention and Deportation

Mass detention and deportation continue to tear our families and communities apart. Every day in the U.S. 1,500 fathers, mothers, children and friends are taken away and locked-up by Immigration and Customs Enforcement (ICE). Detention and deportation has an unimaginable impact in all of our communities. This week alone, 8,500 members of our communities will be separated from their families. At this rate, over 400,000 immigrants will be detained and deported this year, having a devastating impact on entire communities and in the nation as a whole. Due to Congress’ and President Obama’s inhumane and unfair detention and deportation policies, children across the U.S. will spend this Father’s Day without their fathers.

But all across the U.S. people are standing up to say: Ya Basta! Communities are organizing to get fathers released from detention and are marching in the streets to demand an immigration bill that doesn’t leave anyone behind. As Detention Watch Network, we want to make sure that we continue to be on the side of all of those in detention and stand alongside their families and communities, throughout the immigration reform debate and beyond. This Father’s Day weekend, we are calling on the U.S. Congress and the Obama Administration to Keep Families Together, Stop Detention and Deportation now!

Support the fight, let us know what you think.

Introduced by Reps. Bob Goodlatte, R-Va., and Darrell Issa, the SKILLS Visa Act Will create a new visa program - the STEM visa program - which allocates up to 55,000 green cards to foreign students of U.S. Universities with advanced STEM degrees.

Additionally, it provides up to 10,000 green cards for foreign entrepreneurs who can attract investment from venture-capital firms to establish businesses that will create five jobs or more.

The measure is the latest in a series of individual bills introduced in the House to address immigration. Those bills contrast with the comprehensive immigration legislation the Senate Judiciary Committee approved previously. That broad bill, which is expected to advance to the full Senate floor this month, also includes provisions to raise the number of high-skill visas, which are commonly known as H-1B visas.

Republicans has criticized the Senate legislation and prefers that Congress take a more piecemeal approach to dealing with the nation’s immigration challenges.

Click here for a copy of the Bill: http://issa.house.gov/skills/assets/ISSA_058_xml.pdf

A great section by section summary of the Bill by Attorney Greg Siskind, here is the link

Siskind Summary

We will keep you posted with more updates.

As part of the process of filing for a Green Card, a US Employer must obtain a Labor Certification from the Labor Department. The purpose is to demonstrate among other points, that no US Workers were available to fill the job in question. But what are some of the lawful reasons to reject US Workers? Can drinking and smoking habits come into play?

At a recent meeting with DOL representatives AILA inquired about the this topic. Approximately 21 states now allow employers to refuse to hire smokers/other tobacco users, or to make non use of tobacco a condition of employment.

a. Where such a policy is allowed under state law, and where the employer (e.g. a hospital) has a uniform policy of not hiring tobacco users, should an employer disclose its tobacco policy in PERM recruitment, and/or on the ETA Form 9089, or would it be seen as an unduly restrictive requirement by the federal government even though allowable under state law?

DOL Response

As a general matter, DOL is concerned about rejection of U.S. workers for reasons that are not disclosed on the ETA Form 9089. Where employers disqualify applicants on this kind of basis the most conservative practice would be to disclose the requirement both in the advertising when requirements are listed and on the ETA 9089.

Would refusal To cease tobacco use be a “lawful job related reason” for rejecting an otherwise qualified, but tobacco using, U.S. worker?

DOL Response

See response to Question 10.a. above. DOL is not aware of a substantial number of cases involving this issue.

Bottom line we do not suggest using smoking ot drinking habits as a reason for rejection of US workers. Keep it simple and stick with the traditional reason for rejection, such as lack of education requirement, no experience and lack of ability to work in the US.

If you need more information about the PERM process, fee free to email us at any time.

On this Memorial Day in the U.S. we are full of gratitude. Thinking about all those who have served or are currently serving, and all those who have lost their lives in service.

We are also thinking about the individuals and families who have been affected by their loved ones' service; those who have had to cope on the home front, and those who have lost their parent, spouse, partner, child, family member or friend.

Please take a moment to reflect on the meaning of this holiday, and the grave sacrifices that others have made. Wishing you all a relaxing Memorial Day.

Great tip from AILA about how alternate degree and experience requirements are stated on the ETA 9089 and how those requirements are interpreted in adjudicating I-140 EB-3 skilled worker petitions. Recently we have seen too many Requests for Evidence concerning this issue.

The situation arises most commonly where the stated minimum requirement for the position is a bachelor's degree, but the beneficiary obtained a 3-year bachelor's degree. In particular, where no alternative requirement is provided in H-8 on the ETA 9089, but degree equivalency language is included in H-14, Nebraska Service Center has stated that the information in H-14 appears to contradict the "no alternative requirements" indicated at H-8.

AILA advised NSC, as confirmed by BALCA, that information included in H-14 is intended clarify and not contradict information provided in the more limited checkbox format provided elsewhere in Section H. See, e.g., Matter of General Electric Co., 2011-PER-02696 (BALCA, Jan. 22, 2013);

Accordingly, the NSC, the TSC, and Service Center Operations (SCOPS) reaffirmed at the May 9, 2013 Business Representatives Engagement at the TSC that the policy is to review the entire ETA 9089 to determine the employer's intent as to the requirements for the position. So make sure to stay consistent on that form.

Immigration Lawyers commonly used Section H-14 to clarify alternate requirements due to the limited format of the ETA 9089. While it appears that NSC will continue to interpret information provided in H-14 as clarifying the job requirements, the NSC also suggested the following method for more clearly indicating job requirements where a bachelor's is required, but an alternative to a U.S. bachelor's degree or a foreign equivalent degree (e.g., a 3-year bachelor's degree) is acceptable:

In addition to checking "Bachelor's" in H-4, the employer should check "yes" in H-8 that an alternate level of education ("other") is acceptable.

Section 8-B should set forth the acceptable alternate level of education. If the space is too limited, an asterisk ("*see H-14") could be used to direct an examiner to section H-14, where the alternate combination of education and experience could be explained in greater detail.

We will keep you posted as new information becomes available on this topic. If you have questions about PERM and I-140 Immigrant Petitions, feel free to contact our office.

On May 1, 2013, the U.S. Department of State distributed Change Transmittal (CT) incorporating certain updates and clarifications into Foreign Affairs Manual (FAM). These changes have been subsequently withdrawn by the Department of State and are not yet effective. We are providing this summary to let our readers know what we can expect if the changes are eventually implemented. This summary will address the updates and clarifications of provisions regulating visa applications or unauthorized entry into the U.S. through fraud or willful misrepresentation.

I. Evidence of Fraud and Willful Misrepresentation (9 FAM 40.63 N4.8)

i) Types of evidence

Following evidence can be used:

1. Information taken from the alien's nonimmigrant visa (NIV) application; and
2. A report by an immigration officer that the alien made such a statement (for example, this information could be found on the DHS Form 1-275, Withdrawal of Application/Consular Notification).

During the visa interview, the immigration officer may question the alien about what the U. S. Customs and Border Protection Officer asked the alien when the alien entered the U.S., what the alien responded, and where he or she previously was admitted to the United States.

HOWEVER, under the new updates in FAM, silence cannot be recognized an act of misrepresentation. Affirmative act is required. Questions and responses received during the interview must be captured in written format as the officers’ case notes and can later be used to determine if the alien made an “act” of misrepresentation.

ii) Burden of proof

Although the alien still bears the burden to establish that his or her true intent was to visit and otherwise maintain nonimmigrant status, the updates to FAM provide a better protection to the aliens by expressly requiring factual findings in determination of ineligibility.

What this means is that the alien will be given the opportunity to rebut the factual findings made by the officer by presentation of evidence to overcome the findings of misrepresentation and fraud.

If the alien presents sufficient evidence to overcome the findings of misrepresentation or fraud, the alien is eligible for admission.

If the presumption is not overcome, immigration officer needs to submit a description of the evidence submitted by the alien in an Advisory Opinion, which must include the following:

1. The finding that an act of misrepresentation occurred and a short description of what the act was;
2. Any evidence of such misrepresentation from the actual visa application; and
3. The finding, along with evidence on how the alien violated his or her nonimmigrant status within 30 days; the statement that the applicant has admitted that he or she misrepresented the purpose of his or her visit on the visa application or to the immigration officer.

II. Inadmissibility under INA (9 FAM 40.63 N11)

The updates to FAM made it clear that, in general, an alien who has falsely claimed U.S. citizenship in order to obtain a U.S. passport, entry into the United States, or any other benefit under any U.S. State or Federal law will be permanently barred from entering the U.S.

III. Inadmissibility Provisions for False Claims to U.S. citizenship not retroactive (9 FAM 40.63 N12)

The inadmissibility provisions for false claims of U.S. citizenship (INA 212(a)(6)(C)(ii)) are not retroactive. It means that the permanent bar applies only to aliens who have made false claims to U.S. citizenship on or after September 30, 1996.

Thus, if the claim was made on or after September 30, 1996, then the alien will have a permanent bar for entry into the U.S., which does not have an immigrant waiver available. This means that even if the alien has a U.S. citizen spouse or family member in the U.S. who would like to petition for the alien to come to the U.S., the alien will not be able to do it under the current law as there is no waiver for false claims to U.S. citizenship.

The FAM update clarified that an alien who made a false claim to U.S. citizenship before September 30, 1996, is not inadmissible under the terms of Falsely Claiming U.S. citizenship provision, INA 212(a)(6)(C)( ii ). They are, however, inadmissible under the Misrepresentation Grounds, INA 212(a)(6)(C)(i), provided such claim was made to procure a visa, other documentation, or admission into the United states or other benefit under INA.

The reason why the timing of entry is significant is because if the claim to U.S. citizenship was made before September 30, 1996, then it will be treated as a mere misrepresentation, for which there is a waiver available allowing the aliens to reunite with their family members in the U.S.. Thus, if the waiver is approved, the alien will be able to enter the U.S. if the waiver is approved.

IV. Scope of INA Inadmissibility (9 FAM 40.63 N13)

The updates to FAM added a new provision, which distinguished “misrepresentation” by silence from misrepresentation by alien’s affirmative act.

“[In] determining whether a false claim to U.S. citizenship has been made, it is necessary to distinguish between misrepresentation of information and information that was omitted by the alien's silence. Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purpose of INA 212(a)(6)(C)(ii). A misrepresentation about an alien's citizenship requires an affirmative act on the part of the alien.”

V. Knowledge of Falsity (9 FAM 40.63 N14)

There is no intent or willfulness element in the language of INA 212(a)(6)(C)(ii).

However , the individual 's claim to U.S. citizenship must have been false. For it to be false implies not only that the alien was not a citizen, but that the alien knew that he or she was not a citizen. An alien is not inadmissible under INA 212(a)(6)(C)(ii) if the alien mistakenly believed he or she was a U.S. citizen at the time of the representation. Because this provision is an inadmissibility ground, the alien has the burden of proving the mistaken belief; i.e., that he or she did not know the claim was false.

VI. False Claim by Minors (9 FAM 40.63 N15)

An alien who, while under age 18, falsely claimed to be a U.S. citizen is not inadmissible under INA 212(a)(6)(C)(ii) if the alien can show that, at the time of the false claim, he or she lacked the legal capacity to make a false representation of U.S. citizenship.

The test is whether the alien, at the time of the false claim, had the maturity and the judgment to understand the nature and consequences of his or her actions - in the present context, the nature and consequences of a false citizenship claim. This is an individualized inquiry. The alien has the burden of proving lack of legal capacity.

VII. False Claim to Secure Employment (9 FAM 40.63 N16)

It is unlawful to hire an alien who is not authorized to work in the United States. Thus, an alien who makes false claims to U. S. citizenship to secure employment in violation of INA 274A would be inadmissible.

However, it must be determined that the alien specifically made a false claim to U.S. citizenship in order to secure employment. If, for example, an alien claimed to be a U.S. Legal Permanent Resident in order to secure employment, then INA 212(a)(6)(C)(ii) would not apply.

Since the 02/02/09 edition, the USCIS Form I-9 has included separate boxes, to clearly indicate whether an individual claims to be a U.S. citizen or a noncitizen U. S. national. An individual who falsely claimed on USCIS Form I-9 to be a non-citizen U.S. national would not be inadmissible.

VII. Waiver of Exception for INA Inadmissibility (9 FAM 40.63 N17)

i) Waiver Available for Nonimmigrant Visas

An alien who is inadmissible under False Claiming U.S. citizenship provision, INA 212(a)(6)(C)(ii), and is seeking admission as a nonimmigrant maybe eligible for admission under INA 212(d)(3)(A). This means that even if the alien has false claimed citizenship, he/she may be able to enter the U.S. for a temporary nonimmigrant purpose (tourist, student, etc.) if a nonimmigrant waiver application is approved, provided the alien meets the criteria specified in 9 FAM 40.301 N2.

ii) Waiver for Immigrant Visas

*Note: there is not immigrant waiver available for False Claiming U.S. citizenship, INA 212(a)(6)(C)(ii).

An applicant for an immigrant visa who is inadmissible under Misrepresentation/Fraud Grounds (INA 212(a)(6)(C)(i)) may seek a waiver if:

1. The alien is the spouse, son, or daughter of a U.S. citizen or a lawful resident alien; and
2. The Secretary of Homeland Security is satisfied that the refusal of the alien's admission to the United States would result in extreme hardship to the U.S. citizen or lawful resident spouse or parent of such alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United states citizen, lawful permanent resident, or qualified alien parent or child.

*Parents of a U.S. citizen or lawful resident alien cannot seek a waiver.

* A waiver for misrepresentation is no longer permitted solely on the basis that the misrepresentation occurred 10 or more years ago.

VIII. Additional Exception from Inadmissibility under Falsely Claiming U.S. citizenship provision INA 212(a)(6)(C)(ii) (9 FAM 40.63 N17)

An alien will not be inadmissible under Falsely Claiming U.S. Citizenship provision if the following applies:

An alien who voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation if:

1. Each parent is or was a U.S. citizen by birth or naturalization;
2. The alien resided permanently in the United States prior to the age of 16; and
3. The alien reasonably believed at the time of such violation that he or she was a U.S. citizen.

Please note that this article only focuses on changes to FAM. For unchanged provisions, please refer to the Manual or contact our office for additional information.

In a recent NY Times article, San Diego Mayor Bob Filner spoke about improving economic relations between Tijuana and San Diego. Mr. Filner has taken steps to make progress in improving these relations by opening up an office in Tijuana in order to work closely with businesses and the mayor's office in Tijuana. When he opened San Diego’s Tijuana office this year, Mr. Filner spoke in grand terms about the future of cross-border relations. “Dos ciudades, pero una region — we are two cities, but one region,” he said, using the phrase popular among those who want more collaboration in the area. San Diego would put in a bid for the 2024 Summer Olympics, he said, but only to host jointly with Tijuana.

“We need to make the border the center, not the end — but the biggest problem we have is not security, it is openness and communication,” Mr. Filner said in an interview in his City Hall office. “People have to understand that the infrastructure that we need should be an important part of any discussion on immigration. The volume here is so incredible, yet nobody understands how much this matters. People can’t go back and forth, and we’re losing out.”

“The political buzz made it so that there is a self-evident truth that the border was out of control, and that national stigma remains,” said Paul Ganster, the director of the Institute for Regional Studies of the Californias at San Diego State University. “It might make people from Iowa feel better knowing that it takes hours to cross the border, but a better approach is to fix the border so it functions for legitimate purposes. Right now we’re just penalizing ourselves with huge inefficiencies.”

While several former mayors have had warm relations with Tijuana officials, Mr. Filner has made cross-border relations a centerpiece of his administration, appointing a binational affairs director and mentioning Mexico at nearly every opportunity. In his inaugural speech, he congratulated the Tijuana soccer team, the Xolos, for winning the Mexican league title the day before, calling the team “our champions.” And while the Olympic Committee has already rejected the cross-border bid, Mr. Filner is not deterred.

By creating such dialogue and making strides to improve the economic relations between the two cities, more work will be needed by those who can work bi-nationally. Mr. Filner's emphasis on increasing our economic ties is exactly the kind of thing that will help stimulate an economy that is still in recovery for many parts of the country.

For many professionals in Mexico, the TN visa allows someone to work for a company in the U.S. under one of many professional categories. For those companies that are developing and improving their economic ties to Mexico, this opens more opportunities to take advantage of the building economic ties that Mr. Filner and his office is striving for with Tijuana.

Those who are not TN professionals have other options that may be open as well, given all of the talk about economic movement. The E-2 Investor visa is another way to become involved in business ventures in San Diego. With so much trade going on and the push to open up the border to make it easier on trade, an E-2 investor visa is another way to take advantage of the open climate with trade and business right now.

Right now is a great time to become more involved in making the border stronger with greater economic ties between San Diego and Tijuana. If you are interested in knowing your options and how you can take advantage of this exciting time, our office can provide you the guidance in making your professional and economic goals a reality.