Visa Lawyer Blog

Gov. Phil Bredesen signed legislation requiring local jailers to attempt to determine the immigration status of prisoners and forward the information on to federal immigration officials. Gov. Bredesen, a Democrat, said in a statement. “While I do have concerns about this legislation, this bill seeks to set up a verification process similar to what exists in our state’s major cities, and I have been supportive of these efforts.”

Legislative Republicans touted the measure as a major step forward in combating illegal immigration in Tennessee.State officials must develop a “standardized written procedure for verifying the citizenship status of individuals who are arrested, booked or confined for any period in a county or municipal jail or detention facility.” Prisoners will be referred to the “appropriate” immigration agency if local officials determine they are in violation of federal immigration laws or are unable to ascertain their immigration status.

The bill was opposed by immigrant groups and the Tennessee chapter of the American Civil Liberties Union.

The law takes effect Jan. 1 and excludes jails that already participate in cooperative programs with U.S. Immigration and Customs Enforcement officials in which arrestees’ immigration status is checked. Hamilton County and Bradley County sheriff’s office officials said last month they have such programs.

Canadian Immigration Minister Kenney said that Canadian citizenship is more than a legal status, more than a passport. We expect citizens to have an ongoing commitment, connection and loyalty to Canada while introducing a new changes in Canadian Immigrant norms. The main motive behind these changes to prevent citizenship fraud. As promised in the Speech from the Throne, these amendments will streamline the process to take citizenship away from those who have acquired it by fraud, including by concealment of their war crimes. And it would take decision-making away from politicians and give it to the courts.
The proposals in the Strengthening the Value of Canadian Citizenship Act are as follows:

- There are likely to be tough new regulations covering citizenship consultants and tougher measures taken against those who gain Canadian Citizenship fraudulently. This follows on from proposed amendments to the Immigration and Refugee Protection Act relating to immigration consultants – The Cracking Down on Crooked Consultants Act.

- The penalties for citizenship fraud are likely to be increased to a maximum of $100,000 or up to five years in prison or both.

- The intention is to increase the residence requirements so that to gain Canadian citizenship you will have to be physically present in Canada for three of the previous four years.

- In future criminals including violent foreign criminals will be prevented from becoming Canadian citizens.

- The process for revoking citizenship and the removal process will be speeded up. In future decisions on revocations will be made by the Federal Court instead of the Governor in Council.

- Making sure that Canadian law fully implements the first generation limit to passing on citizenship. Generally, Canadians living abroad will only be able to pass on citizenship to one generation. If living abroad the second generation will not normally be able to pass on citizenship to their children. The exception to this will be children of parents who are working for the Canadian Government or a Canadian Province or in the Canadian armed forces.

As am Immigration Attorney that processed many H2A farm worker visas, I am happy to present the Take our Jobs initiative.

There are two issues facing our nation--high unemployment and undocumented people in the workforce--that many Americans believe are related.

Missing from the debate on both issues is an honest recognition that the food we all eat - at home, in restaurants and workplace cafeterias (including those in the Capitol) - comes to us from the labor of undocumented farm workers.

Agriculture in the United States is dependent on an immigrant workforce. Three-quarters of all crop workers working in American agriculture were born outside the United States. According to government statistics, since the late 1990s, at least 50% of the crop workers have not been authorized to work legally in the United States.

We are a nation in denial about our food supply. As a result the UFW has initiated the "Take Our Jobs" campaign. Farm workers are ready to welcome citizens and legal residents who wish to replace them in the field, we will use our knowledge and staff to help connect the unemployed with farm employers.

So fill out the form on this site and continue on to the request for job application. If you need a visa, just email me.......Farmers need you now!!!

USCIS is going to launch a pilot program in July 2010 that will use Dun & Bradstreet databases to verify business information of employers who submit immigration related petitions. "Verification Instrument for Business Enterprises" (VIBE) is a tool intended to help combat immigration fraud, and to minimize RFE's regarding petitioners' business data and eventually to make submission of routine documentation unnecessary.

VIBE will be used to verify a petitioner's ownership, date of establishment, current address, number of employees, business activities, and relationship with other entities, etc. In case of discrepancies between VIBE and the information contained in a petition, the employer will give an opportunity to explain the discrepancy.

The full implementation of VIBE is expected to take place later in the year 2010. Hence, we are advising our all corporate clients to verify and keep updated their D&B information.

Aliens who married or had children before the date of obtaining permanent residency can possibly confer “following-to-join” benefits to their family members. Due to this process, spouses and children will be able to receive green cards quickly. “Following-to join” is not family based immigration, but is similar to a child/spouse receiving derivative benefits based on a primary LPR’s immigration petition.

Here are the following requirements to be met in order for a spouse or child to qualify under “following-to-join”:
1. The LPR must have adjusted status or obtained an immigrant visa through a preference category (family or employment based) or diversity lottery. A LPR’s visa number must also be current in order for a family member to receive “following-to-join”.

2. The petitioner married/had children before becoming a permanent resident and the relationship between the permanent resident and spouse/child is intact at the time of filing. Children of LPRs must be unmarried and under the age of 21. Furthermore, the child/step-child must be from an existing marriage before the LPR obtained permanent residency.

“Following-to-join” is convenient because it allows primary beneficiaries to do away with filing a separate I-130 for their spouse or child, greatly expediting the green card approval process. Furthermore, spouses and children of LPRs do not have to wait for a visa number to become available. Where a LPR’s spouse or child currently resides affects what procedures he/she needs to follow. If ones spouse and/or child are already in the United States, they may apply for adjustment of status (I-485) based on “following-to-join” and if they are outside of the United States then LPRs need to inform a U.S. consulate of their lawful permanent residency status in order for their family members to apply for an immigrant visa.

I met with a new client in my office the other day, he presented to me a Notice of Intent to Rescind his status by USCIS. The Service alleges that he is subject to rescission, because he was not living together with his wife at the time of the adjustment interview, and that he had lied about their living arrangements to the interviewing USCIS officer. What can one do in this situation?

The first analysis that comes to mind is Matter of McKee, 17 I & N Dec. 332 (BIA 1980). In Matter of McKee the Board of Appeals held that a visa petition could be approved, even though the parties had separated and the marriage was no longer viable, as long as the marriage was bona fide at inception, and had not been terminated. This is a key point even today and many USCIS officers seems to ignore this concept.

In another case, Matter of Boromand, 17 I&N. Dec. 2811 (BIA 1980), The Board reviewed the evidence and concluded that it did "not appear that the respondent married" his United States citizen wife for the "sole purpose of evading the immigration laws. Based on this finding, the Board concluded that the adjustment could not be rescinded, based on the charge that he had materially misrepresented his living arrangements with his wife at the time of the adjustment interview.

The Board went on to hold that, "since we have concluded that an adjustment application cannot be denied based solely on the nonviability of the marriage at the time of adjustment, the respondent’s misrepresentation cannot be considered material in this regard. The Board concluded that since the marriage was not a sham, the respondent’s misrepresentations, "did not cut off a line of inquiry which would have lead to a denial of his adjustment application.

Thus, the crucial determination in both McKee and Boromand, was the bona fides of the marriage at the time it was entered into, not whether the parties were living together at the time of the adjustment, or whether the marriage was even viable at that point. As long as the marriage was not a sham and had not been terminated, adjustment can still be granted if the parties have separated and no longer have a viable marriage. This is not always east to accomplish, but having this concept down can be very helpful to clients that are in a bind due to circumstances of life and not due to fraud.

So back to my client, I told him that if he could prove that his marriage was bonafide when incepted he may have a chance to fight his Green Card revocation.

This is not the same case when a determination of fraud marriage is in place. Take the recent case of a U.S. citizen, who was paid to engage in a phony marriage with a Cambodian national to evade immigration laws, pleaded guilty Tuesday in federal court. The guilty plea resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).

Martin and Yota Em participated in a marriage interview with immigration officials in Louisville and falsely claimed that they married in good faith. Phearoun Peter Em acted as an interpreter for Yota Em. On June 30, 2009, Martin and Yota Em were divorced. The marriage between Martin and Yota Em was fraudulent and was entered into solely to evade U.S. immigration laws. Martin admitted that he was paid about $7,000 for participating in the marriage fraud scheme. The maximum potential penalties for Martin are 10 years' imprisonment, a $500,000 fine, and supervised release for a period of six years.

ICE and USCIS are spending large amount of capital and human power to fight Immigration fraud, we expect this trend to continue in 2011 as well.

The American Competitiveness and Workforce Improvement Act (ACWIA), imposes annual reporting requirements on U.S. Citizenship and Immigration Services (USCIS) concerning the countries of origin and occupations of, educational levels attained by, and compensation paid to, aliens who were issued visas or otherwise provided nonimmigrant status under H1B Visas during the previous fiscal year.

Here are some highlights from the report submitted by USCIS earlier this year:

• The number of H-l B petitions filed decreased 15 percent from 288,764 in Fiscal Year
2008 to 246,647 in Fiscal Year 2009.

• The number of H1B petitions approved decreased 22 percent from 276,252 in Fiscal
Year 2008 to 214,271 in Fiscal Year 2009.

• Approximately 48 percent of all H1B petitions approved in Fiscal Year 2009 were for
workers born in India.

• Two-thirds of H1B petitions approved in Fiscal Year 2009 were for workers between the
ages of25 and 34.

• Forty-one percent of H1B petitions approved in Fiscal Year 2009 were for workers with
a bachelor's degree, 40 percent had a master's degree, 13 percent had a doctorate, and 6
percent were for workers with a professional degree.

• About 41 percent of H1B petitions approved in Fiscal Year 2009 were for workers in
computer-related occupations.

• The median salary of beneficiaries of approved petitions increased to $64,000 in Fiscal
Year 2009, $4,000 more than in Fiscal Year 2008.

Pretty interesting information, we hope that things will improve as our economy continues to recover.

Seems like Nebraska is following in the steps of Arizona. Voters in eastern Nebraska will decide today whether to ban hiring or renting property to illegal immigrants. The vote will be the culmination of a two-year fight that saw proponents collect enough signatures to put the question to a public vote. If the ordinance is approved, the community of 25,000 people could face a long and costly court battle. Either way, the emotions stirred up won't settle quickly.The vote will be the culmination of a two-year fight that saw proponents collect enough signatures to put the question to a public vote. If the ordinance is approved, the community of 25,000 people could face a long and costly court battle. Either way, the emotions stirred up won't settle quickly.

From about 165 Hispanics — both legal and illegal — living in Fremont in 1990, the total surged to 1,085 in 2000, according to census expert David Drozd at the University of Nebraska at Omaha. He said an estimated 2,060 Hispanics lived there last year. In May, Fremont recorded just 4.9 percent unemployment, in line with the statewide rate and significantly lower than the national average of 9.7 percent.

If approved, the measure will require potential renters to apply for a license to rent. The application process will force Fremont officials to check if the renters are in the country legally. If they are found to be illegal, they will not be issued a license allowing them to rent.

What do you think of this story, read more on NPR

A great tip from AILA to share with our readers regarding the H1B visa. It seems that H-1B petitions for Speech Language Pathologists (SLP) and similar related occupations are being closely monitored to ensure that accurate job duties are being identified to confirm CGFNS (Commission on Graduates of Foreign Nursing Schools) certification requirements.

There are multiple progressive occupations within the Speech Language Pathology career field including, Teachers of Speech and Hearing Handicapped (TSHH), Teachers of Speech and Language Disabilities (TSSLC), Speech Language Pathologist Assistants (SLPA) and Clinical Fellows (CFY), and Speech Language Pathologists (SLP).

While all of these positions require a state license, only SLPs who are certified by the American Speech-Language-Hearing Association (ASHA) may provide direct patient care without supervision, and thus, only certified SLPs require CGFNS certification.

According to CGFNS, the other related occupations (TSHH, TSSLC, SLPA, and CFY, all of which require a minimum of a bachelor's degree, a license, and direct supervision by a licensed SLP) do not provide independent patient care and must be supervised by a licensed SLP and, therefore, are not eligible for CGFNS certification.

USCIS officers ask that H petitioners carefully delineate the job duties of positions within this career field so that officers can determine whether the position is one of the SLP related occupations that do not require CGFNS certification.

As PERM processing becomes faster in recent months, icert problems continue though. DOL has reported that the incorrect error message that pops up upon entering a date for the prevailing wage source is the result of recent system edit. The glitch will not affect useability, i.e., users can bypass the error message and submit LCAs for processing. In addition, a fix is in development and will likely be in place today or tomorrow. Common recent problem is receiving an inappropriate system warning when entering the Prevailing Wage source. We hope these problem will be fixed soon as the PERM process becoming rather annoying. We will keep our readers posted.

U.S. Citizenship and Immigration Services (USCIS) announced today that a new version of the Application to Replace Permanent Resident Card (Form I-90), is available on the USCIS website. The new version of the form is dated 8/10/09 and contains more user-friendly features.

Applicants may file Form I-90 electronically (through e-filing), or through the mail to the USCIS Phoenix Lockbox facility.

The U.S. Department of State released the new visa bulletin for July 2010 on June 10, 2010.

For the month of July, the EB-1 category remained current for both Chinese and Indian nationals. In the EB-2 category, cut-off dates stayed the same for Chinese nationals (November 22, 2005), but moved forward eight months for Indian nationals from February 1, 2005 to October 1, 2005. In the EB-3 category, dates moved forward from June 22, 2003 to August 15, 2003 and from October 22, 2001 to November 22, 2001 for Chinese and Indian nationals respectively

For the month of June, the EB-1 category was current. In the EB-2 category, dates moved forward for mainland Chinese nationals from September 22, 2005 to November 22, 2005 and remain unchanged for Indian nationals (February 1, 2005). In the EB-3 category, dates moved forward for both mainland Chinese nationals from April 22, 2003 to June 22, 2003 and Indian nationals from October 1, 2001 to October 22, 2001.

It was announced today that U.S. Citizenship and Immigration Services (USCIS) will seek an average 10% increase in immigration fees in order to close a projected $200-million deficit for 2010-11. According to USCIS, budget cuts of $160 million were not enough to offset the gap between the agency's projected $2.1 billion in revenue and $2.3 billion in costs.

“Many of the government expenses being underwritten by these fees are unrelated to the services for which fees are being paid. These are matters of public benefit, and should be funded by appropriations, not applicants," said AILA President Bernard Wolfsdorf. "While a 10% fee increase in and of itself may not seem high, this comes only 3 years after a 66% USCIS fee increase. Taken together, these increases bring many fees to excessive levels,” Wolfsdorf continued.

One positive aspect of the proposal is that it would not increase fees for citizenship applications. Those fees were hiked by 70% to $675 in 2007, an increase that immigrant-rights groups blamed for putting citizenship out of reach for many lower-wage immigrants. Most clients and lawyers are not happy at all with this announcement.

USCIS is launching a pilot program in July 2010 that will use Dun & Bradstreet databases to verify business information of employers who submit immigration related petitions. "Verification Instrument for Business Enterprises" (VIBE) is a tool intended to help combat immigration fraud, and to minimize RFE's regarding petitioners' business data and eventually to make submission of routine documentation unnecessary.

VIBE will be used to verify a petitioner's ownership, date of establishment, current address, number of employees, business activities, and relationship with other entities, etc. In case of discrepancies between VIBE and the information contained in a petition, the employer will given an opportunity to explain the discrepancy. The full implementation of VIBE is expected to take place later in the year 2010. We are advising all corporate clients to verify and keep updated their D&B information.

We're only four days away from the World Cup opener between South Africa and Mexico, so it's a good time to cover some immigration related points. DOS alerted U.S. citizens traveling to or residing in South Africa to safety and security issues related to the FIFA World Cup from 06/11/10 to 7/11/10. This travel alert includes a section on immigration.

Scrutiny of foreign travelers arriving at South African ports of entry will be tightened during the World Cup. U.S. citizens should ensure they have two blank pages marked “Visas” in their passports as required for South African entry formalities. Those travelers with criminal records should consult the nearest South African Consulate or the South African Embassy in Washington, D.C., before traveling. Questions about carrying firearms or other unusual items into the country may also be directed to the nearest South African embassy or consulate. Any traveler coming from or passing through the so-called “yellow fever belt” of Africa and South America must carry certification of having received a yellow fever vaccination upon entry into South Africa.

More from the State Department here....

A former member of the Bosnian Serb Army has left the U.S. to return to Serbia after a federal judge ordered his denaturalization based on concealment during his application for U.S. citizenship that he served in the military during the Bosnian war.

What is Denaturalization ? Denaturalization is the reverse of naturalization, when a state deprives one of its citizens of his or her citizenship. From the point of view of the individual, denaturalization means "revocation" or "loss" of citizenship. Denaturalization can be based on various legal justifications. The most severe form is the "stripping of citizenship" when denaturalization takes place as a penalty for actions considered criminal by the state, often only indirectly related to nationality, for instance for having served in a foreign military. In countries that enforce single citizenship, voluntary naturalization in another country will lead to an automatic loss of the original citizenship; the language of the law often refers to such cases as "giving up one's citizenship" or (implicit) renunciation of citizenship.

In this case Jadranko Gostic, 47, a former resident of St. Petersburg, Fla., departed the United States on June 1, 2010. U.S. District Court Judge James Moody in Tampa, Fla., ordered his denaturalization on May 26, 2010.

Gostic was indicted in December 2006 on one count of unlawful procurement of citizenship and one count of making false statements. In January 2010, a civil complaint was filed against Gostic alleging illegal procurement of U.S. citizenship and requesting his denaturalization. Court documents allege that Gostic served in the Zvornik Infantry Brigade of the Bosnian Serb Army from April 1992 until December 1995. According to court documents, international tribunals have found that some units of the Zvornik Brigade engaged in war crimes and crimes against humanity, and that they participated in the July 1995 action against the Srebrenica enclave during which some 8,000 Muslim men and boys were executed.

Read more...

As the Hospitality business was booming in the US, more and more Hospitality professionals in Europe came to the US and started their own businesses via the E2 visa investment. The same happened to Dean and Laura Franks, a British couple who opened the restaurant in 2000 in the state of Maine.

They used the E2 visa, the nonimmigrant investor visa. It is a temporary category that is granted in two-year to five year increments with no limits on the number of extensions. Now they found that after nine years of running their business, they could not renew their visa, forcing them to shutter the restaurant and leave the country. They are not alone. In the past few months we have seen numerous, E2 and L1A visas get denied for no valid reason. Is the US government turning investors away, are they denying cases intentionally? If so why now?

In denying the Franks’ renewal application last year, immigration officials said their restaurant had become a marginal business. The government sets no specific dollar amount, but it defines a marginal enterprise as one that “does not have the present or future capacity to generate more than enough income to provide a minimal living” for the visa holder and his family.

The Franks were surprised and confused to learn last year that they were deemed marginal. Their tax returns show that their gross annual income in 2008 was $64,000, in addition to rental income of $16,800. Their gross profit for the year was $38,800, which was down from their gross profit in 2007 of $50,700 because of the recession, which hit most businesses. They said they barely needed more than enough to provide for minimal living because that is how they live — minimally.

This is a very subjective test, and we are concerned that many Immigration officers are now applying it more freely.

Immigrants have an ever-increasing role in the creation of small businesses. Immigrant entrepreneurship is widely recognized as having a significant impact on traditional industries such as retail, ethnic restaurants and markets, and garment manufacturing. But new industries in the technology sectors are playing an increasingly important role in the domestic economy and in creating professional links with the international markets in their countries of origin. We hope that the Immigration Service and State Department will stop denying extensions to small businesses that sustain our economy and create jobs to US Citizens.

This is a great tip from AILA, many applicants are often confused about the I-751 receipt number. Be aware that the receipt number listed on a receipt notice for Form I-751, Petition to Remove the Conditions of Residence is not the actual receipt number for that case. In fact, if the receipt number shown on the receipt notice for the I-751 is tracked through the USCIS online case status, an error message will appear. The correct receipt number for an I-751 is listed on the I-751 biometrics notice.

Also a recap for the issue of Procedures for Parties Separated but Not Yet Divorced. Until last year, USCIS held that separated, but not yet divorced, conditional residents were ineligible to file I-751 waivers. According to a USCIS memo, things have changed.

The Memo provides that:

If a waiver is filed post separation but prior to final divorce:

* Petitioners will receive an RFE requiring that the divorce be finalized in 87 days.
* If the divorce is finalized before the response to the RFE is due, petitioners may submit the divorce decree in response to the RFE and the case will be processed as a waiver case.
* If petitioners are not divorced in time to respond to the RFE, they will receive a notice revoking CPR status, and an NTA will be issued.

If a joint petition is filed post separation but prior to final divorce:

* Petitioners will receive an RFE asking for a divorce decree, and when it is submitted, petitioners must then request that their case be converted to a waiver case. This will avoid the need to refile the case as a waiver. When this occurs, the case may or may not, depending on the strength of its merits, be referred for interview.
* If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.

In most cases where divorce is pending or the parties have separated, the U.S. citizen spouse will not agree to sign a joint petition. Thus, the conditional resident will have no choice but to file a waiver and hope that his or her pending divorce becomes final within or close to 87 days after filing.

It is also important to note that the Memo states specifically that USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.