Visa Lawyer Blog

There is still a lot of confusions when it comes to Orphans from Haiti and the legal procedures concerning adoptions from that country. Under normal circumstances, a child immigrating to the United States from Haiti as the adopted orphan child of a U.S. citizen is adopted before leaving Haiti, and is then admitted to the United States with an immigrant visa for Lawful Permanent Residence (LPR) status. The adopted child then acquires citizenship upon entry as specified in section 320 of the Immigration and Nationality Act (INA).

In light of the devastating earthquakes in Haiti, the Secretary of the Department of Homeland Security authorized Haitian children, who were adopted or were in the process of being adopted by American families prior to the earthquake, to be paroled into the United States. “Category 1” parolees are Haitian orphans who were already legally adopted in Haiti. “Category 2” parolees are certain Haitian orphans whose cases had not yet resulted in final adoptions.

o determine what steps to take next, it is most important to understand where you were in the adoption process in Haiti, click here for a complete guide from USCIS

The Government of India has stated that educational cooperation is an "important facet" of Indo-UK ties. They will be in contact with the British High Commission to "better understand the reasons" for the temporary freeze on UK student visa applications by those based in Northern India.

The Indian Government is trying to help genuine students planning to study in the UK who have been affected by the temporary ban on student visa applications made at UK Visa application centers in New Delhi, Chandigarh and Jalandhar from 1 February 2010. An Indian official said, "Student exchanges form a vital component of this cooperation. We would remain in touch with the BHC (British High Commission) on this matter."

The Ministry of External Affairs has been in touch with the British High Commission on this matter to better understand the reasons behind this decision and also to ensure that genuine Indian students planning to go to the UK for studies are not adversely impacted. It is also interesting to note that the UK Border Agency is investigating a number of UK education providers. This week approximately 60 education providers in the UK were suspended from the sponsors' register.

The UK Border Agency on 31 January 2010 announced the temporary ban on UK Tier 4 student visa applications at the three Visa Application Centres in India and at Visa Application Centres in Bangladesh and Nepal. There was a huge increase in the number of UK student Tier 4 visa applications made in Northern India in the last three months of 2009. The temporary ban was introduced as UKBA was concerned that many of these student visa applications were not genuine.

Australian immigration will soon start implementation of biometric checks for Australian visa applications in ten Countries. $69 million Australian dollars will be invested over four years. The Australian Government had the following to say about the new Australian visa biometric requirements.

* If you apply for an Australian visa in any of the ten Countries you will need to also submit your fingerprints and facial images This biometric data is unique to a particular individual and will enable the Australian Government to confirm the true identity of visa applicants.
* Checks will be made in databases for known terrorists and criminals and other people of concern.
* Australia shares biometric data with the United Kingdom and Canada. The United States and New Zealand will join the data-sharing arrangement this year.
* The Australian Government is working closely with the UK Government, which already has experience in this area.

The 10 locations for the scheme have been selected on the basis of National security and fraud risks, locations where the Australian Government can use British biometric collection centers, and Broad geographic coverage of the scheme. The authorities here says that the use of biometrics will help in keeping Australia's borders secure and maintaining the integrity of our migration program.

Important notice to our clients from Eritrea. Consular operations, including visa services, at the U.S. Embassy in Eritrea have been suspended until further notice. According to Embassy Asmara, the closure is in response to the Government of Eritrea's flagrant violations of the Vienna Convention on Diplomatic Relations. These violations include failing to notify U.S. consular staff of the arrest of American citizens, hindering the travel of Embassy officials to visit American citizens in distress, and interfering with the delivery of the U.S. Embassy's diplomatic pouches. The Consular Section will continue to provide emergency services to U.S. citizens.

Information courtesy of the Rome District Chapter (RDC) of AILA.

We like to intimate about the special tax return filing requirements for foreign students. According to Notice 2005-77:
"Non-resident aliens whose U.S. wages do not exceed the personal exemption amount are not required to file a tax return".
We encouraged to go for Tax filing in order to receive a refund. If you are a student and having a taxable scholarship, partially or fully exempted income, or any other taxable income, you are required to file a tax return. If you are a foreign student having an income from a foreign source, a tax free scholarship/fellowship, other non-taxable income, income generated through interest at a U.S. Bank, U.S. savings and loan institution, U.S. credit union, U.S. insurance company, or an investment that accrues portfolio interest, you are not required to file a tax return.

United States citizens and permanent residents are required to pay taxes under the Federal Insurance Contribution Act (FICA). Taxation funds both Social Security and Medicare programs. Under FICA, full and part-time students are exempt from paying such taxes as long as their employment is secondary to their studies. This is also applicable to qualified foreign students on an F-1 visa.

Non-resident students on an F-1 visa are exempt from paying U.S. Social Security and Medicare taxes as long as they are employed in services allowed by USCIS and appropriate for their status and that the services they are performing are within the scope of the purpose of the visa issued to them.

Included Exemptions:
Only certain types of employment are exempt:
- Student may work on campus for up to 20 hours a week.
- During summer vacation, students may work full time, up to 40 hours per week,
- Students who work at USCIS approved off campus locations in practical training (OPT, CPT, or STEM OPT).

During the first year of academic study, F-1 visa holders are limited to on-campus employment. After one year of study, F-1 visa holders may seek off campus employment in one of the classifications above. Typically, non-resident students can only claim one exemption, so long as he/she is not being claimed as a dependent on another U.S. tax return. Restrictions to Tax Exemptions:

F-1 students who enter the United States are required to currently be classified as non-resident aliens to receive exemption from Social Security and Medicare taxes. Once an F-1 student becomes a resident alien, he/she will no longer be exempt (certain exceptions to this in section 7701b).

F-1 students who change to a non-immigrant status (other than J-1, M-1, Q-1, or Q-2) will also be required to pay Social Security and Medicare taxes, typically starting the day that their status is changed. For instance, if an F-1 student changes to H-1B status, he/she will no longer be exempt from paying Social Security and Medicare taxes.

F-1 students who have been in the United States for more than five calendar years do not qualify for exemption because they are considered resident aliens (unless they meet the student FICA exception). F-1 students who have been in the United States for less than 5 calendar years are still considered non-resident aliens; they are exempt from paying Social Security and Medicare taxes. For taxation purposes, the calendar year in which an alien enters the United States is used to determine exemption eligibility. For instance, if an F-1 student enters the U.S. on December 31, 2009, 2009 counts as the first of his five year exemption, even though he entered the very last day of the calendar year.

Spouses and children of F-1 holders in the United States on an F-2 visa will be subject to Social Security and Medicare taxation because their primary purpose for entering the United States is not based on research, teaching, training, or to study. Under law, those in F-2 status are not allowed to work in the United States. Regardless, employment in the United States under violation of F-2 status will not be tax exempt. A qualified foreign student may be exempt from Social Security and Medicare taxes even if he/she is already a resident alien. Revenue Procedure 2005-2011 outlines student FICA exemption eligibility for employment occurring after April 1, 2005.

The Department of Labor announced Public Briefings on the Changes to the Labor Certification Process for the Temporary Agricultural Employment of H-2A Aliens in the United States. Members of our office will attend the briefings tomorrow in San Diego.

On February 12, 2010, the Department of Labor (the Department or DOL) amended the H-2A regulations at 20 CFR part 655 governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment. See, Temporary Agricultural Employment of H-2A Aliens in the United States, Final Rule, 75 FR 6884, Feb. 12, 2010 (the Final Rule). The Department's Final Rule also amended the regulations at 29 CFR part 501 to provide for enhanced enforcement under the H-2A program requirements when employers fail to meet their obligations under the H-2A program. The Department has also made changes to the Application for Temporary Employment Certification, ETA Form 9142.

The Final Rule will become effective on March 15, 2010. All H-2A program users will be required to file their applications under the new regulations, and to comply with all applicable program requirements.

The Department is issuing this notice to announce that it has scheduled three public briefings to educate stakeholders, program users, and other interested members of the public on changes to the H- 2A program made by the Final Rule and on applying for H-2A temporary labor certifications under the new regulations using the ETA Form 9142.

As currently planned, the three briefings will take place in late February and early March of 2010 in San Diego, California; Dallas, Texas; and Raleigh, North Carolina.

Here are some important changes to the K visa process, effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions: The nonimmigrant K visa will be administratively closed.

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality. If your marriage took place in a country that does not have an American embassy, or the embassy does not issue visas, the NVC will send your petition to the embassy or consulate that normally processes visas for citizens of that country. For example, if your marriage took place in Iran where the U.S. does not have an embassy your petition would be sent to Turkey.

I am proud to say that fellow San Diegans are fighting to keep the Immigration debate alive. A group of about 100 people rallied in front of the San Diego downtown offices of California’s U.S. senators Thursday night, calling for renewed attention to immigration reform.

The group gathered at St. Joseph Cathedral on Third Avenue near Beech Street and marched about two miles to a pair of office buildings on B Street near Seventh Avenue, where the offices of Democratic Sens. Barbara Boxer and Dianne Feinstein are located.

There they delivered a message calling on the lawmakers to work on legislation to legalize the millions of illegal immigrants in the country. Their speeches focused on the themes of unity, family and hope. They held signs, in both English and Spanish, with messages like “Don’t destroy more families. Help families” and “God does not separate families. The government does.”

More here...

Mexico’s National Migration Institute published its Manual of Criteria and Migration Procedures. The Manual will be enforced as of 5/1/10 throughout the 32 delegations of the National Migration Institute in Mexico. Courtesy of AILA member Enrique Arellano.

The intention of the National Migration Institute is to clarify, streamline and simplify
processing requirements for each immigration category. Applications currently being
processed and those filed before May 1, 2010 will be analyzed and processed based on
current policies, practices and procedures.

Some of the most relevant aspects of the Manual are the following:

• All migratory forms for tourists, business visitors and technical visitors with
lucrative activities, who intend to stay in Mexico for up to 180 days, will be
replaced by a single “FMM” form (“Forma Migratoria Múltiple”).
The FMM willserve as evidence of the foreign national’s immigration status while in Mexico;

• The business visitor criteria are clearly defined; This new FMM form has an option
for choosing the purpose of the visit as business (negocios), which once the foreign
national enters Mexico, the immigration officer will grant a 180 days stay.

• There are 3 different options that the immigration officer might mark and that will
grant the foreign national 180 days: a) Business (Visitante Persona de Negocios), b)
Visitor with Lucrative Activities (Visitante con Actividades Lucrativas) and c)
Visitor with Non Lucrative Activities (Visitante con Actividades No Lucrativas).
Any of the previous allow the foreign national to visit Mexico for business, either
for working purposes or only for meetings

• In case the purpose of the business visit extends more than 180 days, the foreign
national will have to file for a change of Immigration status to obtain the
correspondent FM3.

• The ABTC (Asia-Pacific Economic Cooperation business travel card) criteria are
clearly defined;

• In the following weeks, the National Migration Institute will publish the formats of
the new migration cards that will replace the FM2 and FM3 booklets. Changes of
activity, domicile, marital status, etc. will no longer have to be annotated on the
migratory document, thereby allowing the foreign national the ability to travel in
and out of the country while a change of status/conditions application is in process
without having to request an exit and re-entry permit;

• Consular Posts will no longer issue FM2 or FM3 booklets. Instead, the Consular
Post will place a visa sticker on the foreign national’s passport, upon receipt of the
petition’s approval from the National Migration institute. The sticker will allow
entry into Mexico within 365 days of issuance. Upon entry, the foreign national
must obtain the new FM2 or FM3 migration card within 30 days.

The Labor Department published in the Feb. 12 edition of the Federal Register, a final rule governing the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program.

The H-2A nonimmigrant visa classification applies to foreign workers coming to or already in the U.S. to perform agricultural work of a temporary or seasonal nature. The U.S. Department of Homeland Security may not approve an H-2A visa petition unless the Department of Labor, through its Employment and Training Administration, certifies that there are not sufficient U.S. workers qualified and available to perform the labor involved in the petition and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

What are the major Features of the Final Rule:

The employer must provide the Department with documentation that it has complied with the prerequisites for bringing H-2A workers into the country, including the requirements related to recruiting for qualified U.S. workers, instead of simply attesting to compliance.

Returns to using the USDA Farm Labor Survey as the basis for determining the Adverse Effect Wage Rate (AEWR). The 2008 rule used the Occupational Employment Statistics Survey, which resulted in a substantial reduction of worker wages (an average of over $1.00/hour).

Reinstates the critical role of the State Workforce Agencies (SWA) in assisting employers by using their expertise on local labor market conditions and recruitment patterns, thereby expanding job opportunities for U.S. workers.

Reinstates the requirement that the SWA inspect and approve employer-provided housing before the Department issues an H-2A labor certification.

Requires that all employer-provided transportation meet, at a minimum, the same Federal standards for vehicle safety, vehicle insurance and driver licensure applicable to most other agricultural workers.

Strengthens revocation and debarment authorities by providing WHD with independent debarment authority in addition to ETA, raises civil money penalties and expands audit authority to include housing.

Continues to include logging as an H-2A occupation. The NPRM proposed to add other forestry-related occupations such as tree planting and related reforestation activities as well as pine straw gathering, but this was not included in the Final Rule in response to concerns from both the industry and advocates about the costs and the workers' potential loss of MSPA protections, including a private right of action.

Creates a national electronic job registry for all H-2A job orders to improve U.S. worker access to agricultural jobs and help growers find workers from across the U.S.
Extends H-2A program benefits to workers in "corresponding employment" (other workers employed by an H-2A employer in any work included in the job order and any work performed by the H-2A workers) to ensure that similarly employed U.S. workers are not provided with lower wages or fewer benefits.

Requires employers to provide workers with copies of the job orders no later than before departure, including from the workers' home countries and to display a poster describing employee rights and protections in English and another language common to the workers at the work site.

Prohibits the use of multi-area itineraries by H-2A Labor Contractors, ending the practice of moving H-2A workers from site to site in multiple areas of employment under one labor certification. Labor contractors participating in this program will now have the same regulatory standards as fixed-site farmers. Required surety bond amounts for H-2ALCs have been increased.

Prohibits the approval of labor certification applications for worksites where workers are on strike or locked out and protects U.S. workers who are denied employment or laid off.

Read the Final rule here

Can you guess how many illegal immigrants reside in the US at this time? DHS released a report estimating that the unauthorized immigrant population living in the U.S. decreased to 10.8 million in January 2009 and grew by 27 percent between 2000 and 2009.

Between 2000 and 2009, the unauthorized population grew by 27 percent. Of all unauthorized immigrants living in the United States in 2009, 63 percent entered before 2000, and 62 percent were from Mexico. The number of unauthorized residents declined by 1.0 million between 2007 and 2009, coincident with the U.S. economic downturn. The overall annual average increase in the unauthorized population during the 2000-2009 period was 250,000.

In 2009, 61 percent of unauthorized immigrants were ages 25 to 44 years, and 58 percent were male (see Figure 3 and Table 5). Males accounted for 62 percent of the unauthorized population in the 18 to 34 age group in 2009 while females accounted for 52 percent of the 45 and older age groups.

Read the complete report here Download file

A client found out the hard way about aggressive debt collectors making harassing phone calls and using abusive language. They would call sometimes three or four times a day. The client bought a fridge on credit and stopped paying when she lost her job. Collection agents said she owed $4,500 and threatened to seize her furniture and car and "send immigration to the house." They contacted her neighbors and boss about her debt, all in violation of the law.

Attorney Sergei Lemberg, a recognized expert on Fair Debt Collection Practices has written an excellent article on this issue and we are featuring this article below. For more information click here: Fair Debt Collection Practices Act

In today’s economy, it’s all too easy to get behind in paying your bills. For many people, simply juggling living expenses involves racking up more debt. To make matters worse, people with the best of intentions get crushed under the burden of mountains of debt, and then are subjected to calls, letters, and harassment by bill collectors. In these stressful times, it’s more important than ever to understand bill collectors and your rights.

Who are bill collectors? Well, there are two primary types of debt collectors. The first consist of those who are from the original creditor. So, for example, if you get behind in your Visa bill, chances are good that you’ll hear from collectors who are employed by the bank that issued your Visa card. This is your original creditor.

The second type of bill collectors are third-party debt collection agencies. These are companies that are either hired by your original creditor, or who have purchased old debt that’s been written off as a loss by your original creditor. When debt collection agencies are hired by a creditor, they typically work on commission. In other words, they get a percentage of the amount the collect. This is powerful incentive to put the squeeze on consumers for every dime they can get. When an agency buys up debt, they usually pay pennies on the dollar and actually own the debt. So, almost everything they collect is pure profit – another powerful incentive.

When a third party agency comes calling, you’re protected from harassment and other illegal practices by the Fair Debt Collection Practices Act. The FDCPA outlines a whole range of illegal behaviors and lines that debt collection agencies can’t cross. Aside from that, the FDCPA says that, if you ask for it, the bill collector must provide proof that you owe the money he’s asking for. This is extremely important for a couple of reasons.

First, debt collectors are notorious for trying to collect money that can’t be legally collected. Say, for example, that you have a bill that’s seven or ten years old. Chances are, the statute of limitations has run out and that bill is no longer collectible under the law.

Second, requesting the validation of a debt can buy you some time. The process of gathering the documentation and sending it to you can give you the breathing room you need to come up with a plan. The law says that debt collectors can’t continue to call you until they’ve established that the debt is truly yours to pay.

Knowing whom you’re dealing with and what options you have are important first steps in dealing with debt collection harassment.

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2010 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is still in recovery mode, and employers are careful before hiring. Yet, many Immigration experts feel the Cap will be met early this year, but when is the big question.

With drastic changes to the Labor Condition Application process (now taking more than 7 days to process), as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.

In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers.

The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.

This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.

Requirements in the Statute

The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available

There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings

LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals

U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.

The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.

H-1B employees with a Master’s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations

The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees

Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits

Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program

Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations

For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria

Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.

Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!

From time to time we can provide most up to date information from different Consular Posts across the globe. The following update is from the US Embassy in Istanbul Turkey and is provided by our AILA liaison committee. Here are the questions and answers:

What are the scheduling/interview waiting period for NIV appts (Turks)? Scheduling waiting period for NIV appts (Iranians)? Times of year that waiting generally increases?

Current wait time for an NIV appt. is approx. 15 days for Turkish nationals. Ankara is
approx. 30 days. Spring time (March thru early July) normally results in a longer wait for NIV appts due to summer work/travel program applications (very popular in Turkey, which ranks only second to Russia in its SWT volume) and tourist visa issuance.

As is the case for Turks, Iranians are only scheduled up to one month in advance. However, the demand for Iranian visa appointments far outstrips supply. When Iranian appointments open up for the following month, they are taken within a few days. Therefore, call towards the end of a given month, and there may be openings available for the month after the incoming month.

What is the current Farsi speaking staff available for interviews?

There is no assigned Farsi speaking consular officer in Istanbul post, nor has been for many years. Therefore if an Iranian applicant cannot speak English or Turkish, post will attempt to use other consulate staff who may speak Farsi to act as translators. Availability cannot be guaranteed.

What is the Post’s acceptance of third country nationals for NIV processing (Iraqis?)

In addition to Iranians, Istanbul s regularly schedules non-resident third country national (TCN) applicants. Iraqis (for example) are welcome to try to book those slots. There are only approx. 10 non resident TCN slots available per week, but unlike the case for Turkish or Iranian appointment slots, TCN appointments have never become backlogged.

Explain the special considerations for E visa processing. Most common preparation
omission/errors for E visa cases? Outlook of “substantiality” factor for E visas at post? How is post looking at “marginality” at a time of economic crisis?

Istanbul post does not get a significant load of E visa applications as do posts such as London. Therefore there is not a dedicated E visa officer, nor is there company registration because Istanbul sees few repeat applications associated with any particular entity. Most E visa applications in Istanbul are family owned/operated businesses. They tend to be an investment of a couple $100k at most, involving relatively few personnel in areas such as restaurants or marble importers. If the investment is less than $100k, it is no surprise that there will be quite a bit of scrutiny, however there is no firm line given that the industry, how new the business
is, and its locality are all highly relevant.

They reiterate that if there is a COS (Change of Status) to E status in applicant’s possession, it is important to remind applicants that there will still be a full adjudication of the visa status eligibility. One must remember that an approval from USCIS does not guarantee a visa by the Consulate abroad. They will still require a full review and adjudication of the visa, and Istanbul is not an exception to this rule.

Regarding marginality in a time of economic crisis, even if there is poor revenue currently, if there was growth before the crisis, this is a positive factor and will be considered. We suggest clients to submit cases with a strong business plan that has a 5 year projection as well 3 year back performance for acquired businesses.

B visa adjudications for pregnant mothers? What should be provided above and
beyond a standard B visa applicant? B for dependent parents? Domestic Partners?

Istanbul post is not opposed to B visas for a pregnant mother as long as she is otherwise eligible. They would prefer that a pregnant mother disclose this at interview and show that she will not be a public charge. Therefore, as long as this can be overcome, planning to give birth while in lawful B status would not be grounds for denying a B visa. Post rarely sees B visa applications for domestic partners/dependent parents of those in H/L/E, etc status.

I was recently interviewed by the Latin America News Dispatch about the current situation in Mexico and our work with E2 investors fleeing from that country.

One option available to wealthy Mexicans who flee the violence in their country is to apply for an E-2 or Investor’s Visa. Since 1994, Mexico has been a so-called Treaty Country, making its residents eligible for E-2 visas. While the State Department only says that the investment needed must be “substantial,” based on our experience a recommended investment varies between 50,000 to 100,000 dollars.

According to the article, not many of these visas are granted every year. In 2009, the U.S. granted Mexico only 2,499 treaty investor and treaty trader visas. This is a small number compared to the 7,598 student visas and 6,020 exchange visitor visas approved for Mexicans in 2009, according to State Department statistics. Yet we feel that demand for such visas is only increasing. We will continue to provide guidance to our clients in this complex area of Immigration Law.

Read the complete article here

In recent weeks our East Coast H1B and L clients reported problems at the Newark port of entry. Problems were reported by applicants from India coming back from vacation or travel for Business. In 2 cases, workers were sent back home, visa revoked by the officer. What is going on?

The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

Best Advice

Applicants should thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.

Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation. Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

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This information is available from our AILA liaison and is an important clarification for those that practice in the H2B area of law.

USCIS’ and DOL’s regulations both allow for the certification of more than one position (DOL) and filing for multiple beneficiaries (USCIS) if all H-2B workers will be performing the same service, for the same period of time, and in the same location. 8 C.F.R. §214.2(h)(2)(ii).

DOL regulation at 20 C.F.R. §655.4 defines the area of intended employment as “the geographic area within normal commuting distance of the place (worksite address) of the intended employment of the job opportunity for which the certification is sought.” It further offers the use of the Metropolitan Statistical Area (MSA) as a reasonable measure in determining the “same area of intended employment.” The CSC uses this definition in establishing the regulatory requirement at 8 C.F.R. §214.2(h)(2)(ii).

We advise on careful planning and preparation of H2b cases, from the first steps when filing the 9041 prevailing wage form, through the 9042 application.