Visa Lawyer Blog

In the past several weeks we were following one of most fierce confrontations, between lawyers and the Department of Labor. First the DOL started auditing all the cases of the largest Immigration firm in the nation, Fragomen. Later, Fragomen sued the DOL, claiming various unfair practices.

This was all a source of concern for us immigration lawyers. If we can not help our clients anymore in filing for permanent residence (Green Cards), what else can we do? Well, the Department of Labor issued some specific guidelines as to what lawyer can and can not do when assisting employers filing under the PERM program. For example:

Attorneys and agents may receive resumes and applications of U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, other than routine clerical or ministerial organizing of resumes which does not include any assessment of, or comments on, the qualifications of any applicants;

Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed;

Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department will audit, and may subsequently require supervised recruitment

Read the Memo here Download file

USCIS recently issued new guidance memo on Continuous Residence, Physical Presence, and Overseas Naturalization for a Spouse or Child of a Member of the Armed Forces per Amendments to the Immigration and Nationality Act by the “National Defense Authorization Act for Fiscal Year 2008.

We link to this important Memo here. Download file
Stay tuned for more exciting developments from USCIS.

This week it is all about the Democratic Convention taking place in Denver. As we follow what unfolds in Denver, the race seems to be getting tighter and tighter. In a CNN/Opinion Research Corp. poll released Sunday night -- after Obama announced Biden as his running mate, 47 percent of those questioned are backing Obama, with an equal amount supporting McCain.

The Obama/Biden team must be very clear on the issues that matter most to voters, and Immigration is going to play a major role in November. Obama created an offical page on his Immigration policy, you can access the page here...

He says:

The time to fix our broken immigration system is now… We need stronger enforcement on the border and at the workplace… But for reform to work, we also must respond to what pulls people to America… Where we can reunite families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should

We are watching you Barack!!!

According to NPR, the answer is yes. They published results of a 10-year study involving more than 3,000 young men and women, most of them in their 20s.

The "second generation" project looked at five groups — Russians, Dominicans, South Americans, Chinese and West Indians — and compared them with U.S.-born whites, Puerto Ricans and African-Americans. Researchers found that most in the second generation were fluent in English and working in the mainstream economy.

Read more here...

What is the latest scandal from Washington? Applicants seeking asylum in the United States have been wrongfully rejected by judges whom the administration chose using a conservative political test, according to an analysis of Justice Department data.

According to the New York Times, the investigation suggests that the effects of a patronage-style selection process for immigration judges — used for three years before it was abandoned as illegal, are still being felt by thousands of applicants whose cases are determined by the judges appointed in that period. Tougher times for applicants and for us lawyers trying to defend them. Read the story here...

We wanted to remind our readers that Operation "Scheduled Departure", A pilot program allowing illegal immigrants to surrender to authorities to avoid jail and have 90 days to leave the country, end today. According to the USCIS this program can be classified as big failure. In San Diego only 4 people turned themselves in to take advantage of this program.

Let us all hope that this lack of success will result in more raids by ICE, and increased enforcement to find more illegal aliens living among us. Click here for the complete AP story

This recent final rule from the Department of State amends the Department of State's regulations relating to the application for a nonimmigrant visa, to generally require all applicants, with certain exceptions, to provide a set of ten scanned fingerprints as part of the application process.

The scanning of ten fingerprints of nonimmigrant visa applicants has already been implemented. For the purposes of verifying and confirming identity, conducting background checks, and to ensure that an applicant has not received a visa or entered into the United States under a different name, the Department of State may use the fingerprints in order to ascertain from the appropriate authorities whether they have information pertinent to the applicant's eligibility to receive a visa and for other purposes consistent with applicable law, regulations, and Department policy. Expect more lines at the airports for sure!!

USCIS announced that in support of the initiatives of the National Ombudsman of the U.S. Small Business Administration, U.S. Citizenship and Immigration Services (USCIS) announces adoption of a small business non-retaliation policy.

If a small business questions or lodges a complaint regarding a USCIS policy (for exanple the practices of ICE raids and hiring illegals or action or seeks help from others to deal with such a policy or action, USCIS will not retaliate against that small business in any fashion. The full policy is established by this notice.

Read the policy here Download file

Employers that violate the H1B program requirements, may be barred by the government from filing future cases. The Department of Labor published a recent list of such employers for the public to be informed. Click here for the complete list of debarred employers

We have recently taken on a deportation case that touched the hearts of all of us at the office. This Italian national that entered on a visa waiver, married a US citizen and fathered a child. Now he is detained by ICE, subject to expedited removal. Is he eligible for a bond and a hearing before a judge? No, not under our current immigration system. We are fighting to stay his deportation, and the entire Italian community is behind us. We are going to discuss the case on 1170AM KCBQ radio this evening, listen to the show tonight. We will keep you posted on the progress of this case.

Here is what Roberto Roucco, the Italian Vice Consul has to say about this matter in a letter to Congresswoman Susan Davis:

Dear Congresswoman Susan Davis:

My name is Roberto Ruocco, I am a US citizen resident in San Diego, California, and I am the Vice Consul of Italy in San Diego, CA which is in your district. I am writing to you to request your kind and compassionate intervention with regards to the following case: MB, a citizen of Italy, is currently detained at the INS detention Center of El Centro, CA for overstaying his visa waiver permit in violation of the immigration law.

M entered in the US as tourist (no visas are required for Italian citizens to visit the USA)in July 2006, met and married a US citizen wife, and had a beatiful baby boy, C, born on June 6, 2007. Because she refused to adjust the status of M to legal permanent residence, M overstayed his visa waiver permit. However, after the birth of his son, he felt that she could change her mind. The situation did not change.

M discovered that his wife was a drug addict, had numerous prior criminal convictions, had had six children all abandoned and given in care of foster houses. Notwithstanding his marital nightmare, he wanted his son to have a normal life. He worked hard all days and succeded to rent a decent appartment for him and his family in the local Little Italy . Working was never a problem because he accepted all kind of jobs.

Further, his kind nature and peaceful character made him appreciated by the entire italian community. In March 2008, while under the influence of drugs,his wife assaulted him with a knife with the baby in her arms and M was forced to call the SDPD to protect him and C. A temporary restrainig order grating full custody of C to M, and criminal proceedings against his wife ensued.

M filed a petition to adjust his legal status under the Violence Agaist Women Act (VAWA)applicable to a man subject to abuse from a US citizen spouse. To take care of C while M was at work, M 's sister came from Italy. On July 9, 2008 M was apprehended by the INS at a check point at sent to jail in El Centro, CA. The entire Italian community mobilitated and provided funds for a proper legal assistance. Two immigration lawyers, Jacob Sapochnick and his associate Susan Perez were hired to motion the immigration court to bail him out based on the petition under the VAWA. Their request was denied. The lawyers moved the federal court for an habeas Corpus while the immigration proceedings would follow up. Their request was denied, but the expedited removal stopped for now. The lawyers appealed to both orders and requested that the Courts granted to bail him out based on the need of custody of the child. No way.

As of today, M lies in jail for having done nothing criminal: 30 long days in the hell of El Centro and no criminal charges: only a violation of visa waiver. Those who have minor criminal charges usually are let go if they are not at flight risk. But not M, who has a baby to take care of.
M intends not to give up, he will not accept any removal from the US because he feels that San Diego is his home and the home of C and because his petition under VAWA is ground for him to be a legal resident of the US. This writing does not have the purpose to interfere in whatsoever manner with the course of the justice. Our legal system is set in a way that hopefully justice is granted. However, in this case justice can be honored without a human being be locked up for months without having committed any criminal actions.

M is not at flight risk, his son needs him in San Diego, his community wants him back. I would like to have the opportunity to inform you in more details about this unreasonable violation of human rights which does not honor our legal system, and to request your authoritative intervention to have M free soon so he can properly defend himself while he is near to his child.

Please contact me at your convenience if you deem that it can be useful.
Respectfully submitted, Roberto Ruocco Vice Consul of Italy in San Diego, CA

USCIS continues to make efforts in decreasing the N-400 Naturalization processing delays. Some applicants are waiting more than 2 years for cases to be adjudicated, but USCIS is really making an effort to make things better.

U.S. Citizenship and Immigration Services (USCIS) announced today that it continues
to make steady progress in reducing the significant number of naturalization applications it received last year. USCIS now anticipates naturalization application processing will average 10-12 months nationally by the end of September 2008 – a substantial improvement from its estimated average processing time of 16-18 months first announced last year.

According to the press release, San Diego processing times for Citizenship currently stand at 5 months. New York processing times are almost double at 10 months at this time.

Click here to find your city and state current processing Download file

Here is a true story that can happen from time to time. Client send his case to USCIS via DHL, the case never reaches USCIS as DHL loose the package. Client re files the case using FEDEX, and cancels the first check. Fedex package reaches USCIS and a case is created. A week later the first package is finally delivered, but the check is canceled. USCIS issue a request for the funds via a collection notice. What is a client to do? Pay the money first and later ask for a refund. Yes, that is the current policy.

But how do you actually ask for a refund from USCIS?

The memo from Acting Director Scharfen states that clarifications were made and the USCIS Adjudicator's Field Manual was updated in March 2008. This update instructs applicants or petitioners either to make their requests by calling the USCIS customer service line or writing the office that has jurisdiction over the application or petition in question. If this request is approved, the USCIS (and not the applicant or petitioner) will complete the Request for Refund of Fee (Form G-266).

The USCIS does not assign receipt numbers to refund requests, but these may be tracked by contacting the USCIS National Customer Service Center (NCSC). The NCSC, in turn, will submit a service request to a local field office or service center, asking for a status update on the refund request. A response should be received by the applicant or petitioner within thirty days. In practice, clients tend to wait much longer. I hope the refund policy in just cases can be improved further.

On July 30, 2008, President Bush signed into law the U.S. Global Leadership Against HIV/AIDS, Tuberculosis and Malaria Reauthorization Act (H.R.5501). While this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive.

The bill includes a provision that repeals the HIV travel/immigration ban by amending the current health-related ground of inadmissibility in the Immigration and Nationality Act to exclude any reference to HIV. This provision returns the authority to the Department of Health and Human Services to determine whether individuals with HIV should be permitted to travel to the U.S.

While this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive. INA section 212(a)(1)(A)(i) renders inadmissible any individual "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance." Until HIV is taken off the list by the Department of Health and Human Services, HIV continues to be listed as a communicable disease of public health significance under 42 C.F.R. Section 34.2(b)(4) and HIV positive foreign nationals continue to remain inadmissible to the U.S. This legislation has not changed the requirements for the waiver of inadmissibility.

I know that the title of this posting sounds like a bad joke, but it is true. U.S. Immigration and Customs Enforcement will roll out “Operation Scheduled Departure,” a pilot program created to encourage people who have outstanding deportation orders to turn themselves in.

San Diego and four other U.S. cities will participate in the program, which is set to end Aug. 22. The other locations are Santa Ana; Chicago; Phoenix, Ariz.; and Charlotte, N.C.

What is the likelihood of wanted illegal immigrants to turn themselves in remains to be seen. I am very skeptical about all this. Currently, there are thousands of inmates sitting in immigration jails awaiting removal. These are non criminal individuals that overstayed their visas or legal entry status. Why do ICE officials keep them locked up awaiting removal, waisting tax payers money? I am really curious to see how this program will work in practice.

Read more about the Pilot program

Businessweek reports on a new research by economist Gianmarco Ottaviano of the University of Bologna and Giovanni Peri of the University of California at Davis. They say immigrants compete for jobs with broader swath of native workers, diluting their impact on the least skilled segment of the local workforce. They also say that employers can't substitute an immigrant for an American that easily. They find that immigration's effect on local worker's wages is almost too small to measure.

This latest research contradicts the popular paper by Harvard University Economist Mr. Borjas, who found that immigration suppresses the wages of the least skilled workers. I tend to to agree with Mr. Ottaviano and Peri, immigrants do not hurt native workers wages, they only boost our economy.

Some good news for the weekend as provided by AILA. On 7/31/08 and 8/1/08, the House Judiciary Subcommittee on Immigration held a mark-up session and approved the following three pieces of immigration-related legislation:

H.R. 6020, sponsored by Representative Lofgren (D-CA), would amend the INA to allow soldiers who have served in support of contingency operations to be eligible for naturalization and for other purposes. It passed by a vote of 6-3.

H.R. 5882, sponsored by Representative Lofgren (D-CA), would recapture employment-based and family-sponsored immigrant visas lost to bureaucratic delays and to prevent losses of these visas in the future. It passed by a vote of 8-1.

H.R. 5924, sponsored by Representative Wexler (D-FL) would provide 20,000 employment-based visas per year for three years specifically for nurses. It passed by a vote of 7-2.

All three bills will now go to the full House Judiciary Committee for review, though no date has been scheduled yet.