Visa Lawyer Blog

Tough days ahead for employers. Chipotle Mexican Grill has fired a substantial number of the 1,200 employees at its 50 Minnesota restaurants after a federal immigration audit found some were illegal workers. The circumstances of the firings sparked a protest by several dozen people. As Greg Nammacher, secretary-treasurer of the Service Employees International Union ("SEIU"), Local 26 in St. Paul said: "companies all over this country are using immigrant labor, and then, when the government shines a light on those employees, the companies wash their hands of them."

The investigation of Chipotle began several months ago, when ICE asked to see work eligibility documents. The company was not told why it was singled out for review. ICE then provided Chipotle with a list of employees whose documents might be invalid.

Chipotle tries to screen new employees, but some provide false documents showing they are eligible workers. In cases where employees insist they have the proper documents, Chipotle has sought to give them extra time to produce the identification.

Read more here...

This article by Attorney Habib Hasbini will shed the light on some of the most recent developments regarding California interpretation of employer’s duty to provide employees mandated meal and rest breaks under California Labor Code section 512 and Title 8, California Code of Regulations section 11010 et seq.

An issue that potentially could shift the balance of powers in favor of the employers in California is currently pending before California Supreme Court in Brinker Restaurant Corporation v. Hohnbaum (2008) 85 Cal. Rptr. 3d 688.

The crux issue is how California employers could satisfy their meal and rest periods obligations. The underlying controversy is whether employers need only “authorize” their employees to take meal and rest periods or employers must “ensure” their employees take their meal and rest periods. Interpreting the law one way or the other will have significant implications on the vast wage and hour litigation and class action lawsuits in California.

The Appellate Court, Fourth Appellate District, Division One, issued an opinion in Brinker v. Hohnbaum (2008) 80 Cal. Rptr. 3d 781. Brinker is one of the first California State Appellate Court cases to rule on the parameters of employers’ duties under the California Labor Code regarding meal and rest breaks for non-exempt employees. The decision was overwhelmingly in favor of California employers. The Appellate Court held that an employer does not have to “ensure” that meal and rest breaks are taken. The court’s holding made these types of cases very difficult to certify as a class action. Specifically, the Appellate Court held that employers are not required to “ensure” that employees take the meal or rest breaks properly authorized to them under the provisions of IWC Wage Orders.

The significance of the court’s holding lies in denying class certification with respect to meal and rest break claims. The court reasoned that individual questions arose as to whether class members missed rest breaks as a result of supervisor’s coercion or the employee’s free choice to waive such breaks. Further, individual questions predominate as to whether employees received a full 10-minute rest period, or whether the period was interrupted. The issue of whether rest periods are prohibited or voluntarily declined is an individual inquiry and would result in thousands of mini-trials to determine whether each employee was denied a rest period or the employee waived it.

Further, the Court of Appeal held that under California law, employers need only provide and not ensure meal periods. As a result, as with the rest period claims, meal period claims are not amenable to class treatment. The court reasoned that forcing employers to ensure meal breaks are taken would force employers to police their employees and force them to take meal breaks. This would be an impossible task especially when thousands of employees work multiple shifts. If employers were unable to do so, employers would have to pay an extra hour of pay any time an employee voluntarily chooses not to take a meal period or takes a shortened one.
Importantly, like rest periods, the Court of Appeal held that because meal breaks need only be made available, not ensured, individual issues predominate and the meal break claim is not amenable to class treatment. It will require an individual inquiry as to all the class members to determine if the employer failed to make the breaks available, or employees chose not to take them.
Brinker is fully briefed and awaits a hearing date for oral argument before the California Supreme Court. Will the Supreme Court confirm the Appellate Court ruling and shield California employers from class action lawsuits involving meal and rest periods violations?

We shall wait and see! If it does, it is a big victory for employers in California

Slightly sooner than expected but the H1B cap was reached today. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap- subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Those who missed the filing this week, should get ready to file on April 1, 2011 for the FY 2012 term, we feel that visas will run out fast this coming April.

President Barack Obama delivered a 61-minute State of the Union address Tuesday, but only a a passing reference to immigration issues.

The president said: "Now, I strongly believe that we should take on, once and for all, the issue of illegal immigration. I am prepared to work with Republicans and Democrats to protect our borders, enforce our laws and address the millions of undocumented workers who are now living in the shadows."

A passing reference to immigration. I'm glad it was in there, but this is a complicated issue not suited to sound bites -- or one paragraph in a 6,000-word speech. Obama has to convince his own party to stop thwarting reform to please organized labor.

President Obama's best line: "That dream is why I can stand here before you tonight. That dream is why a working class kid from Scranton can stand behind me. That dream is why someone who began by sweeping the floors of his father's Cincinnati bar can preside as Speaker of the House in the greatest nation on Earth." What a great line, and a wonderful tribute to a magnificent country. On that point, there is unanimity.

U.S. Citizenship and Immigration Services (USCIS) announced that as of January 21, 2011, it has received 62,800 H-1B petitions counting toward the congressionally-mandated 65,000 limit. Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H-1B cap." Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are set aside for the Chile/Singapore H-1B1 program. However, USCIS adds back to the H-1B cap the projected number of unused Chile/Singapore H-1B1 visas, which for this fiscal year is 6,350. This means that, of the approximately 64,550 H-1B visas available this year, approximately 1,750 remained as of January 21, 2011.

USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions received in this category will be adjudicated under the general 65,000 cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn.

USCIS will once again use actual data on approvals and denials for this fiscal year to determine how many petitions should be accepted for filing and when to end the filing period for cap-subject petitions. If this rate continues, visas will run out in a week or so. So hurry up and get your filings in now.

The U.S. Citizenship and Immigration Services will host public sessions to discuss the E-2 Investor Visa and Grant of Status at the National Park Service's American Memorial Park indoor auditorium in Garapan.

The two-hour sessions will begin at 5pm on Jan. 25 and 26, Tuesday and Wednesday. Seating is available for 110 people on a first-come, first-served basis. Note that these public sessions are exclusively designed to discuss the CNMI-only E-2 Nonimmigrant Investor, for which the final rule was published in December 2010, and Grant of Status.

There will be no opportunity to discuss the Transitional Worker rule during these forums. Public meetings will be set up in the future when the final rule for the CNMI-Only Nonimmigrant Transitional Worker is finalized.

Great update from AILA border Liaison for the benefit of our readers. Although Canadian nonimmigrants are largely visa-exempt, the non-Canadian dependent of a principal Canadian must be issued a visa to present for inspection and admission to the U.S. Visa issuance for L-2 non-Canadian dependents of L-1 beneficiaries whose petitions were submitted and approved at a port of entry or preclearance location have been problematic because, until recently, L-1 petitions submitted and approved at ports of entry or preclearance locations were not sent to the U.S. Department of State, Kentucky Consular Center (KCC) for entry into the Petition Information Management System (PIMS).

Visa issuance for TD non-Canadian dependents faced similar challenges, as no mechanism was in place to forward approvals of TN applications (consisting of only the TN letter) at the Port of Entry to the KCC for entry into PIMS.

Consular posts require confirmation of the principal Canadian's approval of TN or L-1 application through a PIMS entry for a non-Canadian dependent's visa application before they may issue visas to dependent L-2 and TD spouses and children. Thus, non-Canadian dependent spouses and children were unable to obtain visas, or visa issuance was significantly delayed.

The national office of CBP recently informed AILA that guidance was issued to the field directing officers to fax a copy of the CBP-approved I-129 petition directly to KCC for entry into PIMS. CBP agreed that similar action should be taken for TN submissions.

CBP recommends that those submitting L or TN filings at preclearance locations or ports of entry specifically indicate that a derivative beneficiary will require a visa and also remind the admitting officer that CBP protocol is to fax confirmation of the Canadian L-1 or TN admission to KCC in order to allow for PIMS entry for the required visa application.

Such notification may best be accomplished with a colored sheet that specifically requests that CBP fax a copy of the petition or TN filing and the action taken by CBP to KCC for entry into PIMS and that the request also be made verbally at the time of admission. For more information on TN Visas call our office at any time.

The following is new information regarding the ability to schedule a waiver appointment for an immigrant visa in Mexico. The information from the Consulate in Ciudad Juarez States:

Please be advised that as of January 10, 2011, the procedure to request a waiver appointment has changed. Applicants can make the appointment through the following website http://mexico.usvisa-info.com. They will need to log onto the website using their Passport Number, Date of Birth and Nationality. When prompted to select a Trip Purpose, they will need to choose "Immigrant IV Waiver" to schedule the appointment.

Alternatively, Applicants can schedule their waiver appointment by contacting the Visa Information Service at any of the numbers provided in the following link: http://www.usvisa-info.com/en-MX/selfservice/us_service_options.

We hope this information is useful in responding to your questions. For future reference, direct all inquiries through our online form at http://ciudadjuarez.usconsulate.gov/feedback-form.html. Inquiries sent by mail or fax will face significant delays in processing. Please note that unless you have been specifically requested to send additional information directly to this mailbox, your message will not be replied to.

Sincerely,
Consular Information Unit
U.S. Consulate General Ciudad Juarez, Mexico

Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission as a lawful permanent resident or fiancé(e) under certain circumstances. This waiver is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien's inadmissibility cannot be waived.

In this Bog article we discuss the very unfamiliar area of H3 visas for the Hospitality Industry. The very talented attorney Kate Powell from our office has been very successful in crafting and getting approved numerous such cases, and her summary is presented below.

The H-3 nonimmigrant visa category is available for aliens coming temporarily to the United States as either a:

• Trainee to receive training, other than graduate or medical education training, that is not available in the alien’s home country or
• Special Education Exchange Visitor to participate in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.
This article will cover only H-3 trainee visas. H-3 training may be in a variety of fields, including commerce, communications, finance, government, transportation, agriculture, etc. Our office has been successful in obtaining H-3 visas for numerous hospitality trainees to receive hospitality related training at the hotels in the U.S.

Training purpose. The heart of an H-3 petition is the explanation for conducting the training in the United States. The petition should describe how the U.S. company is benefited by providing the training, the career abroad for which the training will prepare the foreign national, and the reason why the training cannot be obtained in the foreign national’s home country. The training program should be related to the petitioner’s business and cannot be for workers who already possess “substantial training and expertise” in the area of training.

The petitioner must establish its ability to provide the training, and the training program itself must not be available in the foreign national’s own country. In addition, the training cannot be in a field unlikely to be used outside the United States, or the primary purpose of which is to eventually staff the domestic operations of the U.S. company. This classification is not intended for employment within the United States. The petitioner must establish that the beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training. It is designed to provide an alien with job related training for work that will ultimately be performed in the alien’s home country.

Therefore, it is very important to show that the trainee has no intention of abandoning his or her foreign residence and will return to his or her home country upon completion of the training program.

Training program. In order to obtain H-3 classification, the petitioner must describe the training program in detail. The description must include the nature of the training, the type of supervision, the proportion of time, if any, that will be devoted to productive employment, the number of hours in classroom instruction and/or on-the-job training, and an itinerary if the training will be in more than one location. The training program that deals in generalities with no fixed schedule, objectives, or means of evaluation will not be approved.
Practice shows that training programs will be approved if they are described carefully and specifically, and if the petitioner demonstrates some benefit to the U.S. company providing the training.

Advantages of H-3 category

1) Eligibility for H-3 status is not based on advanced education. Unlike nonimmigrant work visas, absence of the degree in the field of training is actually beneficial for H-3 classification. The regulations require that the alien does not possess substantial training in the proposed field of training.

2) There are no numerical limits on the number of H-3 petitions granted each year. H-3 may be a good option for an alien who wants to stay in the U.S. and eventually apply for H-1B, but the number of H-1B visas allotted for the fiscal year has run out and the alien has to wait until the visas become available. In that case, the alien might want to receive H-3 training and then switch to H-1B in the future. If this is the case, the adjudicator might later request evidence that the alien has intent to go back to his or her home country after completion of the temporary employment in the U.S. This is because anytime you apply for a nonimmigrant visa the adjudicating officer has a presumption that you have the intent to immigrate. Therefore, the burden is on you to show that you have sufficient ties with your home country, such as relatives, property, offer of employment upon your return, etc.

3) Sometimes it may be beneficial to obtain H-3 training visa rather than J-1 training visa. Certain J-1trainees are subject to a two-year home residency requirement that requires that they return to their home country before they can acquire H or L visa status or permanent residency. The H-3category does not have such a requirement, and there are no specific rules excluding any particular occupations--unlike the J-1 training category, which has numerous occupational exclusions.

Limitations on extensions. If the H-3 petition is approved, you may be allowed to remain in the United States for up to 2 years. However, we advise our clients to complete the training program before the expiration of 2 years. An H-3 foreign national trainee who has completed two years of training may not have his or her status extended or changed or be readmitted to the United States with another H or L visa unless he or she has resided outside the United States for at least six months. In order to avoid that, we recommend our clients to change their status before completing full two years of training. In that case, the alien does not have to remain outside the U.S. for 6 months.

In case H-3 visa is denied, there are ways to challenge the denial. Our office has been successful in securing an H-3 visa even after the denial was issued.

H-3 training visa may be used to provide a nonimmigrant solution for training in a variety of industries, and, thus, can be a valuable tool in meeting the goals of U.S. employers and foreign nationals seeking training in the United States. The circumstances of each case must be evaluated to determine which would be more appropriate and advantageous to your particular case, taking into consideration many of the factors discussed above. If you are interested in your eligibility for H-3 visa, contact our office for additional information.

I previously reported on changes to the H2B visa program. This is a notice on the identification of foreign countries whose nationals are eligible to participate in the H-2A and the H-2B nonimmigrant worker programs. The notice becomes effective when it is published in the Federal Register on 1/18/11.

Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may approve petitions for H-2A and H-2B nonimmigrant status only for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the Federal Register. That notice must be renewed each year. This notice announces that the Secretary of Homeland Security, in consultation with the Secretary of State, is identifying 53 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year.

Nationals from the following countries are eligible to participate in the H-2A and H-2B nonimmigrant worker programs:

Argentina
Australia
Barbados
Belize
Brazil
Bulgaria
Canada
Chile
Costa Rica
Croatia
Dominican Republic
Ecuador
El Salvador
Estonia
Ethiopia
Fiji
Guatemala
Honduras
Hungary
Ireland
Israel
Jamaica
Japan
Kiribati
Latvia
Lithuania
Macedonia
Mexico
Moldova
Nauru
The Netherlands
Nicaragua
New Zealand
Norway
Papua New Guinea
Peru
Philippines
Poland
Romania
Samoa
Serbia
Slovakia
Slovenia
Solomon Islands
South Africa
South Korea
Tonga
Turkey
Tuvalu
Ukraine
United Kingdom
Uruguay
Vanuatu

This notice does not affect the status of aliens who currently hold valid H-2A or H-2B nonimmigrant status.

Read the Notice here Download file

Tech companies and the U.S. Chamber of Commerce have bemoaned the shortage of American students earning advanced degrees in math, engineering and science; half of all graduate students in those subjects at U.S. universities are foreign-born.

House Oversight Committee Chairman Darrell Issa (R-Calif.) introduced a bill Wednesday that would pave the way for up to 55,000 foreign graduate students at American universities to obtain a green card.

Issa's bill would make it easier for those graduate students to stay in the country after earning their degree by allowing up to 55,000 graduates holding advanced degrees from U.S. universities to earn green cards, provided they have found employment "in the sciences or medicine."

According to the text of the legislation, applicants must have earned a degree inside the U.S. within the previous five years and must have found a position that "will substantially benefit prospectively the national economy of the United States."

Many international graduate students wishing to stay in the U.S. after completing their degree attempt to find employment with a U.S. firm willing to sponsor them for an H-1B visa. Let us hope this much needed Bill will go somewhere.

Read More...

Beginning January 10, 2011, the U.S. Embassy and Consulates in Mexico will process visas differently. Under the new procedures, most applicants will go to Applicant Service Centers (ASCs) prior to their consular section interview. The ASC staff will collect the applicant’s biometric information that will be reviewed by the consular section prior to the applicant’s interview. ASCs will be located in buildings separate from the U.S. Embassy and Consulates.

The new process will provide several advantages to applicants:

*
Total visa application costs will go down. Applicants will no longer pay one fee to obtain information and schedule the appointment, another fee for the visa application, and a third fee for courier service. Instead, they will pay only one application fee that will cover the appointment, application, and courier fees. The current application fee will stay the same: USD140 for a tourist application, USD150 for petition-based cases (including temporary worker visas), and USD390 for treaty-trader and investor visas.
*
Many applicants who are renewing their visas will no longer require an interview with a consular officer. These applicants can simply visit the nearest ASC in order to submit application documents and provide fingerprints. See the links below for more information on the Interview Waiver Program.
*
Because the collection of biometric information will take place at the ASC, applicants who are required to visit both the ASC and the consular section should spend less time at the consular section than they have had to in the past.
*
Applicants at the U.S. Consulates in Ciudad Juarez, Monterrey, and Nuevo Laredo will no longer pay a USD26 surcharge.

What is the new process for applying for a nonimmigrant visa to the United States?

Before applicants can schedule an appointment, they will be required to complete the DS-160 online application and pay the visa application fee (MRV fee). If the applicant chooses to pay the MRV fee at Banamex or Scotiabank, each applicant will print a deposit slip with the correct amount of the MRV fee and the applicant’s receipt number.

The MRV fee can also be paid by credit card through the appointment website or by telephone. The appointment website will be available soon. Whether the applicant schedules an appointment through the web site or through the call center, the DS-160 nonimmigrant visa application form bar code number and the MRV receipt number will be collected prior to the scheduling of the appropriate appointment for the ASC as well as the consular section appointment, if required.

During the scheduling process, applicants will have an opportunity to choose a convenient DHL location to pick up their passports with the approved visa.

How will the new process work?

* Before making an appointment online or contacting the Call Center to make an appointment, applicants will download a deposit slip and pay the visa application fee at any Banamex or Scotiabank location. The fee can also be paid online or by telephone using a credit card.

Continue reading "B2 Non Immigrant Visas - Embassy of the US in Mexico City Issued FAQs on New NIV Procedures" »

Yes we still have H1B visas available. U.S. Citizenship and Immigration Services (USCIS) announced that as of December 31, 2010, it has received 57,300 H-1B petitions counting toward the congressionally-mandated 65,000 limit.

Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the "H-1B cap." Under the terms of the legislation implementing the United States-Chile and United States-Singapore Free Trade Agreements, 6,800 of the 65,000 available H-1B visas are set aside for the Chile/Singapore H-1B1 program. However, USCIS adds back to the H-1B cap the projected number of unused Chile/Singapore H-1B1 visas, which for this fiscal year is 6,350. This means that, of the approximately 64,550 H-1B visas available this year, around 7,250 remained as of December 31, 2010.

USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions received in this category will be adjudicated under the general 65,000 cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn. USCIS will once again use actual data on approvals and denials for this fiscal year to determine how many petitions should be accepted for filing and when to end the filing period for cap-subject petitions.

Since the Labor Condition Application process prior to filing a petition with USCIS can take a week on average, time is of the essence for any additional H-1B cap-subject filings for this quota. Once the cap has been exhausted, employers will next be able to file cap-subject petitions starting April 1, 2011, for an October 1, 2011 start date.

The Department of State announced the introduction of a redesigned Consular Report of Birth Abroad (CRBA). The CRBA is an official record confirming that a child born overseas to a U.S. citizen parent acquired U.S. citizenship at birth. The redesigned document has state-of-the-art security features that make it extremely resistant to alterations or forgery.

CRBAs have been printed at U.S. Embassies and Consulates around the world since their introduction in 1919. Effective January 3, 2011, CRBAs will be printed at the passport facilities in Portsmouth, New Hampshire and New Orleans, Louisiana. Centralizing production and eliminating the distribution of controlled blank form stock throughout the world ensures improved uniform quality and lessens the threat of fraud.

Applications for U.S. passports and the redesigned CRBA will also use the title of “parent” as opposed to “mother” and “father.” These improvements are being made to provide a gender neutral description of a child’s parents and in recognition of different types of families according to the Department of State.

A few months ago we posted the most recent update about Visa Waiver overstay adjudications in San Diego District office and other offices, see here

In San Diego the situation is still on hold and there is no clear guidance yet. Nationwide we have some clarity. This is the update by Stephen Manning, AILA Amicus Chair & Laura Lunn, 2010 ILG Summer Immigration Litigation Fellow:

In Bradley v. Holder, the government filed a Brief in Opposition to the cert request. While it seems doubtful that the Supreme Court will grant certiorari to hear the argument given the government’s position and the general state of the law among the circuits, the government’s brief presents the position of the United States. Indeed, the brief can be cited in litigation as the considered interpretation of the statutes and policy of the United States as it comes from the Solicitor General.

The government’s brief on the issue clarifies its position on adjustment of status for applicants that entered the United States through the Visa Waiver Program (VWP), codified in 8 C.F.R. §217. The question presented was “[w]hether an alien who waived his rights under the VWP and who has overstayed the term of lawful admis­sion may contest his removal by applying for adjustment of status and demanding the right to present that appli­cation to an immigration judge in removal proceedings.” Although the government strongly opposes an applicant’s right to review under these circumstances, it delineates occasions when an individual admitted under the Visa Waiver Program has the ability to adjust their status to that of a legal permanent resident (LPR). Specifically, VWP entrants are eligible to become LPRs through “marriage or other immediate family relationship to a United States citizen.” This means that VWP entrants can file an I-130 petition for an alien relative and can also apply for adjustment of status under the I-485 application, approval of which is left up to USCIS’s discretion.

Additionally, the government’s brief acknowledges that the Department of Homeland Security (DHS) has discretion when determining whether or not to place a WVP entrant in removal proceedings. While the government did not exercise a favorable act of discretion in Mr. Bradley’s case, hope is not lost for many more individuals seeking to adjust their status through marriage after their allotted 90-day stay expires.

The government’s position in Bradley can be summarized as this: Mr. Bradley came to the United States and gained lawful entry through the VWP. It was the fifth time he entered the United States under the VWP, which indicates that he understood the terms of the program since he benefitted from it numerous times before. However, this final time he overstayed his visa and lived and worked unlawfully in the United States for ten years before he married his wife. At that point they filed an I-130 petition for an alien relative and an I-485 for Mr. Bradley to become an LPR based on their marriage. Meanwhile, the couple failed to appear for their marriage interview and USCIS denied their applications because they were deemed abandoned. The couple appealed the denial of the I-485, but the Board of Immigration Appeals (B.I.A.) denied the appeal because under the Visa Waiver Program the Board lacks jurisdiction. Subsequently, DHS placed Mr. Bradley in removal proceedings. He sought review of the order of removal which the Court of Appeals denied. The holding of the Court followed precedent set by six other circuits and determined that respondent “may not, after the expiration of his 90-day stay, adjust his status as a defense to removal.” Mr. Bradley also filed a second I-130 which was granted but USCIS denied his second I-485 application for adjustment of status. The denial was a matter of discretion and the decision was based on factors including Mr. Bradley’s “unauthorized employment in the United States and his overall disregard of the immigration laws.”

In the government’s brief in opposition, it describes the ways in which Mr. Bradley failed to follow protocol for obtaining legal status in the United States. He overstayed his visa for an extended period of time, meanwhile working illegally. When he did petition to adjust his status to that of a legal permanent resident through his marriage, he and his wife failed to attend the interview. It was only after this that DHS decided to remove Mr. Bradley from the country. The government asserts that Mr. Bradley could not adjust his status as a defense to removal after the expiration of his visa. As a VWP entrant, Mr. Bradley waived his right to a removal proceeding and therefore could not appeal to the Board when USCIS made the determination that he abandoned his application.

However, and this is the good news as a matter of law and policy: the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust.

In Mr. Bradley’s case, USCIS weighed both favorable and negative factors in making its discretionary determination to deny his I-485 application for adjustment of status. While USCIS acknowledged that he was married to a U.S. citizen, the multiple negative factors outweighed the positive and his application was denied—a result that could potentially be avoided if the factors weighed in his favor.

Favorable factors that bear on a positive exercise of discretion may include but are not limited to the following: (1) being a spouse of a U.S. citizen; (2) having an approved I-130 petition; and (3) evidence of good moral character. Thus, the relief that either DHS or USCIS had the discretionary authority to grant Bradley was not offered and the government remained firm that eligibility for adjustment of status is not a defense to an order of removal. Nevertheless, according to the government’s brief, other VWP entrants are not barred from relief if they overstay their 90-day visa and later attempt to adjust their status through marriage.

The Solicitor General merely restates — and makes policy that ought to bind USCIS — what has been the common practice and experience for most (but not all) field offices across the country.

Bottom line, the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust status based on marriage to a US Citizen Spouse.

More news from Arizona. Immigration hawks Sen. Russell Pearce, the author of SB1070, and Rep. John Kavanagh will attend a Jan. 5 press conference at the National Press Club to introduce model legislation that aims to force the U.S. Supreme Court to weigh in on the longstanding interpretation of the 14th Amendment that grants citizenship to the U.S.-born children of illegal immigrants. Lawmakers from 14 states who plan to introduce the bill will attend as well.

Legislators in Alabama, Arizona, Delaware, Idaho, Indiana, Michigan, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, Pennsylvania, Texas and Utah plan to introduce birthright citizenship bills in 2011. What a way to start 2011??