Visa Lawyer Blog

U nonimmigrant derivatives may apply to extend status with the VSC when the status was initially granted for less than the three years required for adjustment of status under INA §245(m).

Although the regulations at 8 CFR §214.14(g)(2) contemplate extensions of U derivative status in cases where the derivative is outside the United States and is unable to enter in a timely manner due to consular processing delays, the regulations are silent about extensions of status for U derivatives in other situations.

USCIS has clarified that extensions of status are also warranted where the derivative's U nonimmigrant adjudication was delayed, resulting in an initial grant of status for less than three years. Because adjustment of status under INA §245(m) requires that the applicant have U status for at least three years, this resulted in some derivatives being ineligible to adjust. The policy memorandum clarifies that VSC can consider delays other than those related to consular processing as a basis for extending U derivative status.

The request for an extension of status should be made using form I-539 and filed with the VSC regardless of geographical jurisdiction. The application should include:

* the filing fee or documented request for a fee waiver,
* evidence of the principal's and derivative's U status,
* evidence of the principal's adjustment of status (if applicable),
* evidence of the derivative's relationship to the principal, and
* the applicant's statement regarding why the extension is needed.

Something for the weekend.

Saks Fifth Avenue and Oscar de la Renta are among the fashion industry players who are joining Mayor Michael Bloomberg's coalition for immigration reform and calling for an easier visa process for international workers.

Bloomberg made the announcement Friday, the day after the close of the fall previews at New York Fashion Week. Brooks Brothers, Perry Ellis, Diane von Furstenberg and Malia Mills are also joining the group, which already claims as members chief executives of major corporations including Hewlett-Packard, Disney and News Corp.

The Partnership for a New American Economy pushes for a path to legal status for undocumented immigrants and wants to make it easier for companies to hire foreign students and attract overseas talent.

Next Model Management owner Faith Kates is joining the group and says photo shoots in New York are often cancelled or delayed because of visa problems.

Fashion models of may obtain a Professional Work Visa. Fashion models do not need to meet the definition of "specialty occupations". The alien must show evidence that she is coming to the United States to perform services which require a fashion model of prominence. The employer must pay the fashion model at least the prevailing wage for that occupation in the area of intended employment.

A model must have an employer in the U.S. prior to working in the U.S. Frelance work is not an option.

Documentation of at least two of the following:

Received reviews in major newspapers, trade journals, magazines etc. Performed services as a fashion model for employers of distinguished reputation Received recognititon for achievements from organizaitons, critics, fashion houses or modeling agencies Commands a high salary or other substantial remuneration for services evidenced by contracts

Fashion models of "distinguished merit and ability" may be admitted to the U.S. for the period of time required by the employer, up to a maximum initial period of stay of three years. Extensions of stay, up to a maximum of three additional years, are permissible, for a total period of admission of six years.

This may not be a big issue but worth reporting. Some of our clients have received information from USCIS that interview appointments are scheduled at the National Benefits Center (NBC). If you receive an I-797 Interview Appointment Notice, e-mail, or update from Case Status Online indicating that an interview is at NBC, please contact the NCSC at 1-800-375-5283 , or contact your local office, to request the correct USCIS location of the interview.

NBC is located in Lee's Summit, MO, and is not open to the general public. Interviews are not conducted at NBC. An interview will be held at the local office that has jurisdiction over the case.

In Marriage-Based Green Card interviews, which are conducted in USCIS District and Field Offices only, Adjudications Officers set out to determine whether the applicant’s marriage to a U.S. Citizen is a legitimate one. A legitimate marriage is a marriage that was not entered into for the purpose of evading immigration law. USCIS is required to focus on whether, at the time the marriage was entered into, the bride and groom intended to establish a life together.

In order to make a determination that a marriage is legitimate for immigration purposes, the examining officer looks into the conduct of the parties after the marriage to prove their intent at the time of its inception.

As of February 20, 2011, the U.S. Citizenship and Immigration Services (USCIS) will require that all employers filing Form I-129 petitions seeking employment of H-1B, H-1B1, L-1 and O-1A workers certify that they have reviewed Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) to ascertain whether or not an export control license is required for the employment. The certification is contained in a revised Form I-129.

More specifically, employers must certify that they have:

(1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and

(2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.

If an export license is required to be obtained before such release, the employer must attest that the worker will NOT be exposed to covered technologies without first obtaining an export license covering the foreign worker. We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which in itself would be a violation of federal law.

Export controls are generally thought of in relation to the transfer of physical technology. However, export controls also encompass the oral and visual disclosure or transfer (by “any means”) of technical data to a foreign person. Controlled technology exists in a wide variety of fields including, but not limited to, biotechnology, materials, imaging, avionics, chemistry, physics, computer security, robotics and urban planning. Foreign persons born or from specific countries are more likely to require an export license for controlled technology – e.g., Iran, Syria, Cuba, Sudan, China, Israel, Russia and the former Soviet republics.

Although the I-129 certification will initially only be required for the above-referenced worker classifications, export controls may apply whenever a foreign person is directly or inadvertently given access to controlled technology. Inadvertent disclosure can occur during telephone, email or fax communications; through visual access to photographs, technical specifications or diagrams; or from computer server access, training sessions, or tours of facilities. Best practices for export compliance may necessitate an organizational-wide technology control policy identifying the criteria for workers’ and visitors’ access to facilities and systems, and their participation in business meetings and phone conferences.

This is a very complex area of the law and we would recommend consulting an attorney with specialized knowledge in this field. If you are a consulting company, please talk to your client and find out if the client knows for a fact whether an export license is required or not for the project that your H-1B Consultant will be working on. If your client is not forthcoming with the information in regards to the export license, we recommend that you consult with an attorney who specializes in this field of law.

To determine the applicability of an export license in the I-129 context requires knowledge of the work duties and environment, including the technology and technical data encountered therein, and the technologies and technical data that are controlled for release to foreign persons. Exemptions may apply for technologies and technical data that is in the public domain, publicly available, already or to be published, fundamental research or educational. Please keep in mind that you have to ascertain the requirement for the export license on a project basis. For example, your H-1B Consultant is working with Client X on Project ABC and it is determined that no license is required. Thereafter, after some time, say one (1) year, the same H-1B Consultant working at Client X begins work on separate Project XYZ, then you must re-determine whether an export license is required for Project XYZ. We must then file an amended H-1B for the H-1B Consultant if it is determined that an export license is required for Project XYZ.

If your organization has not previously addressed this issue or needs assistance in determining whether or not an export license is required for an individual, it should seek legal advice from a qualified attorney.

A few days ago we received a Request for Evidence (RFE) for one of our H1B transfer cases as well for a new H3 visa Petition. The Request was stating that the employer can not be verified in the Validation Instrument for Business Enterprises (VIBE) Program, and the employer must submit more documents in order to be verified. Suggested documents are federal Tax returns, IRS registration documents, and more. So what is happening here?

The U.S. Citizenship and Immigration Services (USCIS) is beta-testing the use of a commercial business information service to independently verify petitioner information. The Validation Instrument for Business Enterprises (VIBE) Program will be used by USCIS Officers to access electronic records on entities filing Forms I-129, I-140 and I-360, nonimmigrant and immigrant petitions for foreign workers.

The electronic records review may include the petitioner’s business activities, North American Industry Classification System (NAICS) code, income and credit rating, ownership, affiliated entities, locations, number of employees, etc. If electronic information negatively affects eligibility or is inconsistent with what has been submitted by the petitioner, a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) may be issued.

For example, if a petitioner files an I-129 claiming to be a nonprofit research organization exempt from the H-1B cap and the $1,500 ACWIA fee, and the electronic record shows that its primary business is Fashion Design, an RFE may be sent to confirm its eligibility or to submit the fee. In the I-140 context, VIBE may be used to confirm the petitioner’s ability to pay the proffered wage.

USCIS expects that the VIBE Program will result in more consistent adjudications and will eventually reduce the amount of paper documentation required of some petitioners as well as the frequency of RFEs issued to qualified petitioners. For now all employers should expect more Request for Evidence in the months to come, we suggest prepare new H1B cases early and carefully to minimize delays.

I was interviewed yesterday by Ruxandra Guidi from KBPS Public Radio about the topic Selective Service Encourages Undocumented Men to Sign Up. This is an interesting topic that we will hear more about in the next few months.

Here is a link to the story from the Radio Site

According to U.S. law, a man must register with the Selective Service within 30 days of his 18th birthday. Yet only about 25 percent of American citizens are signed up, and no one knows how many undocumented people have done so.

Selective Service spokesperson Dan Amon said the agency has always struggled to get more undocumented men to sign up.

"That's always been a priority with us because there are low rates of compliance in areas where there might be a heavy concentration of Latinos, or Spanish-speaking people," said Amon.

But Amon couldn't give a reason for the current outreach campaign. He said, however, that the Selective Service Administration will not share any information about undocumented enlistees with immigration authorities like ICE, or Immigration and Customs Enforcement.

This recent development is puzzling many immigrants and their lawyers around the Southwest, where Selective Service will start to get out the word over the next few months.

San Diego immigration attorney Jacob Sapochnick said he's advising his undocumented clients not to sign up until more information becomes available.

"It could be some sort of a sign that there may be something happening in the government as far as part of a big reform that will come up," said Sapochnick. "It could be that this is just the beginning because they told this agency to start doing this. I find it hard to believe that this is going to be the case, but who knows?"

Here is an interesting update for our marriage cases readers. U.S. Citizenship and Immigration Services (USCIS) announced the creation of a new employment authorization document (EAD) which also serves as an advance parole (AP) travel permit.

The new card will be available for persons who concurrently file an I-765 application for an EAD and an I-131 application for an AP with their I-485 adjustment of status application in the final stage of the permanent residence process.

The card will be valid for either one or two years, depending on whether the applicant's immigrant visa preference category is retrogressed. The card will look identical to the current EAD but will have an annotation that states "Serves as I-512 Advance Parole." Notably, if an applicant only applies for an EAD or an AP, USCIS will issue the legacy version of the EAD or AP. The new card will continue to be a valid List A document for I-9 purposes.

The new dual-purpose card will make it easier for applicants who will now only have one document to carry and make it easier when traveling. Only concern is for applicants that are already in overstay status when applying for adjustment, such applicants should be careful in using the AP document and leaving the country during the process of adjusting status. We will keep you posted.

We all know by now about the Pleasanton university that catered to mostly online students is being called a sham by federal prosecutors who say the university was a front to illegally provide immigration status to foreign nationals.

The complaint, filed by the U.S. District Attorney's Office, claims Ms. Su the founder, was part of an elaborate scheme to defraud, using false statements and misrepresentations to the Department of Homeland Security.

According to the complaint, Su and Tri-Valley University have made millions of dollars in tuition fees for issuing the visa-related documents, enabling foreign nationals to obtain illegal student immigration status.

We have seen several students here in San Diego that were issued notices to appear by ICE and are trying to help them resolve this issue by negotiating with ICE as well as trying to see who can be reinstated.

We now have the response from Tri Valley University to share. Tri-Valley University (TVU) letter written by its President regarding ICE’s decision to withdraw the school’s SEVIS approval. The letter, which has been redacted, includes responses to the unresolved issues listed in the SEVP Notice of Intent to Withdraw letter.

This new new information just came in recently, but is already a confusing topic among illegal immigrants.

All Legal Permanent Residents, who are male and between the ages of 18 - 26 years, are required to register for Selective Service (females are not required to register). If you failed to register for Selective Service you will be unable to prove ‘good moral character’ for the requisite five previous years prior to the filing of your application for Citizenship which will in all likelihood result in the denial of the application.

As a rule of thumb, if you missed the window to register, an applicant should wait until age 32 years before filing a Citizenship application.

Now the Selective Service came out with the following notice:

ATTENTION, UNDOCUMENTED MALES & IMMIGRANT SERVICING GROUPS!

Selective Service does not collect any information which would indicate whether or not you are undocumented. You want to protect yourself for future U.S. citizenship and other government benefits and programs by registering with Selective Service. Do it today.

If you are a man ages 18 through 25 and living in the U.S., then you must register with Selective Service. It’s the law. According to law, a man must register with Selective Service within 30 days of his 18th birthday. Selective Service will accept late registrations but not after a man has reached age 26. You may be denied benefits or a job if you have not registered. You can register at any U.S. Post Office and do not need a social security number. When you do obtain a social security number, let Selective Service know. Provide a copy of your new social security number card; being sure to include your complete name, date of birth, Selective Service registration number, and current mailing address; and mail to the Selective Service System, P.O. Box 94636, Palatine, IL 60094-4636.

Clients are asking if it is safe to register with the selective service even if one is illegal, I honestly hope that the SSS will keep their word and not report undocumented aliens, this remains to be seen.

The Department of State released the new visa bulletin for March 2011 (http://travel.state.gov/visa/bulletin/bulletin_5337.html) on February 11, 2011.

Employment Based Visa Bulletin for the month of March 2011:
The EB-1 category is current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward 7 days for Chinese nationals (from July 1, 2006 to July 8, 2006), and still remained unchanged for Indian nationals (May 8, 2006). In the EB-3 category, the cut-off dates moved forward from January 1, 2004 to January 22, 2004 for Chinese nationals and moved forward from February 22, 2002 to March 15, 2002 for Indian nationals.

Employment Based Visa Bulletin for the month of February 2011:
EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward 9 days for Chinese nationals (from June 22, 2006 to July 1, 2006), and still remained unchanged for Indian nationals (May 8, 2006). In the EB-3 category, the cut-off dates moved forward from December 15, 2003 to January 1, 2004 for Chinese nationals and moved forward from February 1, 2002 to February 22, 2002 for Indian nationals.

In a recent meeting between the American Immigration Lawyers Association and USCIS the following question was raised:

What is the policy regarding the procedure for a legal name change during the naturalization process. We understand that the CIS permits applicants to complete a petition for legal name change during the application interview. However, at least one field office prohibits male applicants from legally assuming their spouse’s last name, absent a separate legal name change. This practice conflicts with USCIS policy. Please clarify the agency policy.

USCIS representatives responded:

We appreciate your concerns regarding any practice you believe conflicts with established USCIS policy. On this particular question, we know that some Districts have had a misunderstanding regarding name changes based on state law that prohibits a man from taking his wife’s last name when they marry. USCIS sent guidance to the field on January 25, 2011 reiterating to all of our offices that an applicant may change his or her name to any name approved by a court of competent jurisdiction.

So the conclusion is, no matter the State of your residence or the local laws regarding name change, at the Naturalization interview you may change your name to any name including your wife's last name if you chooses to do so.

Here is an important update for our readers. Many applicants are reporting sever delays with I-130 applications for Immediate Relative cases.

In November 2010, USCIS transferred approximately 36,000 Immediate Relative petitions from
the California Service Center to the Texas Service Center. They anticipated that this redistribution
of work would result in more timely adjudication of these petitions. Due to a number of unforeseen circumstances at the Texas Service Center, many of these cases have not been processed and are beyond the estimated processing times.

On Feb. 7, 2011, the service implemented a rapid response plan to expedite the adjudication of these petitions. They have transferred a large number of these Immediate Relative petitions back to the California Service Center to take advantage of resources currently available to immediately process these cases. Petitioners will see an action such as an approval, denial or a Request for Evidence (RFE) on their case from the California or Texas Service Centers by the end of February. Additionally, they have briefed the Department of State’s National Visa Center about these cases. We will keep you posted as we receive further updates from the Service.

What do you make of this? Thousands of immigrants from India have crossed into the United States illegally at the southern tip of Texas in the last year, part of a mysterious and rapidly growing human-smuggling pipeline that is backing up court dockets, filling detention centers and triggering investigations.

The immigrants, mostly young men from poor villages, say they are fleeing religious and political persecution. More than 1,600 Indians have been caught since the influx began here early last year, while an undetermined number, perhaps thousands, are believed to have sneaked through undetected, according to U.S. border authorities.

Hundreds have been released on their own recognizance or after posting bond. They catch buses or go to local Indian-run motels before flying north for the final leg of their months-long journeys.

The Indian migration in some ways mirrors the journeys of previous waves of immigrants from far-flung places, such as China and Brazil, who have illegally crossed the U.S. border here. But the suddenness and still-undetermined cause of the Indian migration baffles many border authorities and judges.

More..

There are many bars to changing status and adjusting status, and overstaying the visa is not the only problem. Unlawful employment can create several problems when one seeks to adjust status in the US.

Unlawful employment occurs quite frequently when the line between being a visitor for business and actual employment is crossed. Situations where this commonly occurs for performers and athletes are one-time appearances for which remuneration is paid incorrectly, self-employment, or providing volunteer services for which bonuses are later intended to be paid once a legitimate visa is obtained.

Appearing on Jay Leno to promote a project is fine, but getting paid to host a segment of Disney Channel is probably not. Performing at weddings, bar mitzvahs, and parties is also a problem if you were paid, and it may be a problem if you received something "inkind."

Appearances to promote a product you endorse--whether it is tennis shoes or soda pop--also need to be appropriately structured so that the activity is not deemed "employment" in the United States.

If there has been unlawful employment, then you cannot change status and must--as a matter of general consular practice--apply for the visa at your home consulate. If, however, you are applying to adjust status based on employment (as opposed to based on a family relationship), then you may adjust so long as the unlawful employment was for less than 180 days since your last lawful admission. USCIS examiners will seem unaware of the fact that the 180-day clock starts after the last lawful admission as opposed to being cumulative from the first admission.

As a result, you may find yourself receiving a request for evidence asking for proof of maintenance of status for all admissions and may even find the adjustment referred for interview. However, a brief memo from a good immigration lawyer usually suffices to solve this particular "training issue." Something of greater concern is that the filing of an I-485 adjustment application--according to USCIS--does not stop the accrual of unlawful employment.

Therefore, either you must maintain your underlying nonimmigrant status or--if that is not possible, such as in the case of an O1 visa--you must have a valid employment authorization document for all employment.

Unlawful employment is a serious violation, so try to avoid working illegally at any cost.

When it comes to the Visa Waiver program, clients often ask me, what happens when a Visa Waiver traveler who is in the U.S. visits a third, non-adjacent country, and then seeks to return to the U.S.? Do they receive a new 90-day period upon re-entering the United States? What if they go to Mexico or Canada or another adjacent country?

According to the CBP, An alien admitted into the United States under the Visa Waiver Program (VWP) who departs to visit a third country other than contiguous territory or an adjacent island and then returns to the United States to apply for admission as a temporary visitor for business or pleasure under the VWP, would receive a new 90-period of admission if he is found to be admissible.

If the same alien traveled only to foreign contiguous territory or an adjacent island, he would generally be readmitted for the balance of his original period of admission if found to be admissible. An alien is this situation may request to be admitted for a new 90-day period and be admitted for that new period if slbe is found to be admissible.

Please note that any VWP applicant for admission must establish his admissibility to the satisfaction of the inspecting CBP officers. An alien seeking a new 90-day period of admission under the VWP after departing the United States to "visit" a third country should expect to undergo greater scrutiny than most other VWP applicants. So this is possible but expect a tough time trying to get back in.