Visa Lawyer Blog

We has learned that the USCIS hold on adjudication of cases involving same-sex partners has been lifted. An announcement by immigration officials in Washington on Monday that they were delaying decisions on some immigration cases involving gay couples led to a surge of expectations among gay advocates that the Obama administration had taken a small but significant step toward recognizing same-sex marriage.

But now, immigration officials moved swiftly to clarify their position and dampen those hopes, saying they have not made any policy changes that would provide an opening to gay couples. The episode added to the legal confusion that has followed the administration’s determination last month that the law that bars the federal government from recognizing gay marriages, the Defense of Marriage Act, is unconstitutional.

According to Immigration Equality Memo released today, until DOMA is repealed or until there is a final court decision, it is the obligation of the Executive branch to comply with and enforce the law.  Recent statements by DHS re‐iterate this enforcement message; therefore, if a USC or LPR files an I‐130 immigrant visa petition on behalf of his or her partner, it will be denied.   
As discussed above, the theoretical benefits of marriage seem to outweigh the theoretical risks for many, if not most, bi‐national couples. The same, however, cannot be said for the filing of an I‐130 in several situations.  For example:
• A USC/LPR Should Generally Not File an I‐130 on Behalf of an Undocumented Spouse: An
undocumented foreign national whose spouse files an I‐130 on his or her behalf may be placed in removal proceedings.  This moves the individual out from “under the radar” and puts them at
greater risk of physical removal from the U.S.

• A USC/LPR Should Generally Not File an I‐130 on Behalf of a Spouse Who Has a Valid Tourist or Student Visa and Intends to Continue Using It:  The filing of an I‐130 on behalf of a spouse is generally seen as an indication of the spouse’s intent to remain in the U.S. permanently.  Doing so will likely make it very difficult for the foreign spouse to enter the U.S. in the future as a tourist or a student.  

• A USC Should Generally Not File a Fiancé/ee Petition on Behalf of an Exiled Partner:  Since a
fiancé/ee visa filed today will almost certainly be denied and may be evidence of immigrant
intent, such a filing will likely lead to the denial of any future tourist or student visa application.
On the other hand, if the spouse of a USC or LPR is in removal proceedings and has nothing to lose by having his or her partner file an I‐130, there is generally no reason not to file it.  A pending I‐130, or a pending appeal of a denied I‐130, could form the basis for a request for prosecutorial discretion or administrative closure of the removal case.  

The President’s position and Attorney General’s announcement are so new that the broader implications are still being reviewed and analyzed.  This is the first time that the White House and DOJ have announced that Section 3 of DOMA is unconstitutional, and we hope that this announcement will soon pave the way to immigration recognition for bi‐national couples. 

Read the Memo here Download file

This just came in, Charlie Oppenheim, the Chief of the U.S. Department of State's Immigrant Visa Control and Reporting Division, has confirmed a dramatic reduction in the use of EB-1 immigrant visa numbers and the resulting favorable effect on the EB-2 category for immigrant visas chargeable to India.

Due to a consistent reduction in demand since October 2010 for EB-1 immigrant visa numbers, the otherwise unused numbers will "drop down and be available for use in the EB-2 category." According to Mr. Oppenheim's comments, that could mean that a potential 12,000 additional numbers will be available to the EB-2 category. This situation will most likely result in an advance of the India EB-2 cut-off date for May's Visa Bulletin. The reason for this effect on the EB-2 category is that "otherwise unused numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates."

We will keep you posted.

As the H1B filing deadline approaches, lawyers and employers are scrambling to get the cases ready for filing on April 1. Our office sure is in a state of war as stacks of H1B files are moving between the copy machines into organized FEDEX envelopes.

This is a last minute tip from the USCIS Vermont Service Center (VSC) that will be receiving cases along with the California Service Center.

Officials from VSC confirmed that the "in process" screen shot from the Department of Labor (DOL) website indicating that a PERM application remains pending still is the best evidence to document eligibility for H-1B extensions under AC21 §106(a). If an application is under appeal or reconsideration and the status has not been updated on the DOL website, VSC has and will continue to accept copies of e-mail correspondence or affidavits from counsel or the employer attesting that a request for review/reconsideration or appeal of a denied labor certification has been filed with DOL. For correspondence sent by courier, it also is helpful to include the tracking report evidencing delivery to DOL.

The key point was that the VSC noted that only one of the following conditions need to be met as of the date of filing of the extension request:

1) 365 or more days have passed since the filing of any application for labor certification; and, the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification's validity period; or

2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or

3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.

With respect to the first two conditions, the VSC has confirmed that the Neufeld memo amends previous guidance to allow eligibility for an extension beyond the 6th year as long as one of these criteria are met prior to the alien's requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period of time. For an alien who has already reached the six-year maximum, they are eligible to extend H-1B status beyond the six-year "cap" if the labor certification application or I-140 petition has been pending for at least 365 days prior to the alien's requested start date on the petition.

Please email us for more information. Good luck to all the H1B candidates.

Birth Tourism is a hot topic right now. How do I know? Reporters keep calling me asking about this topic with great interest.

The latest story was covered by the daily. The Daily is new type of media exclusively created for the ipad and provides cutting edge news with amazing content delivery. You have to try it to appreciate.

The latest story that I was part of is about Mothers coming to America to give birth. Millions of foreign tourists visit the United States every year, and a growing number return home with a brand new U.S. citizen in tow. Every year millions of foreign tourists visit the United States, and a growing number return home, after having given birth to a new baby.

Eight percent of all babies born in the U.S. in 2008 were to illegal immigrant parents, according to a groundbreaking analysis of U.S. Census Bureau data by the Pew Hispanic Center. All of those children are U.S. citizens while their parents remain undocumented.

Thousands of legal immigrants, who do not permanently reside in the United States but give birth here, have given their children the gift of citizenship, which the U.S. grants to anyone born on its soil.

The number of U.S. births to non-resident mothers rose 53 percent between 2000 and 2010, according to the most recent data from the National Center for Health Statistics. Total births rose 5 percent in the same period. Among the foreigners who have given birth here, including international travelers passing through and foreign students studying at U.S. universities, are "birth tourists," women who travel to the United States with the explicit purpose of obtaining citizenship for their child.

Catering to the women is a nascent industry of travel agencies and hotel chains seeking to profit from the business.

Is this just a trend or a growing reality, share your thoughts with us.

Read our commentary at the daily.com

Great story, another example how the illegal immigration debate is now a big part of our culture.

In 1993, when I was 14, I became a regular on “Sesame Street.” The show usually liked to have a teenager on, so that was me. My character had my same name, Carlo, and eventually I got a job at Mr. Hooper’s store. I had to make a birdseed milkshake for Big Bird, that was my tryout. I ended up appearing on “Sesame Street” for five years. But the whole time, I had a secret: I was an undocumented immigrant. The papers I’d used to get hired were fake.

My family had come from Ecuador when I was seven and my older brother Angelo was nine. We came on a tourist visa, and the moment my parents had gotten it, we knew we were not coming back. They sold all our furniture before we left.

My mother had a sister living legally in the United States, and my parents planned to have her sponsor us for residency. Soon after landing in New York, my parents saw a lawyer. But we were told the process would take four or five years.

Coming to the States was traumatic. In Ecuador, we had lived in a house. Here, we were in a small apartment. We didn’t know any English. But you know, at that age, things change quickly. In six months we were speaking English and running around like normal kids. Most of the time, we blended in. But we knew weren’t supposed to be here, and we lived with a lot of fear.

I started acting when I was 11, almost as a fluke. One day, we went to visit our cousins, and they were on their way to try-outs for a community theater production of “Oliver!” It was through a program put on by the city, to get disadvantaged kids off the street. When we got there, the producers were like, “You should try out, too.” So my brother and I did. Then we all went to lunch. When we got home, we had a phone message that we’d both been cast. I was Oliver.

Ninety-five-year-old Leeland Davidson discovered recently that he's not considered a U.S. citizen, despite living nearly 100 years in the country and serving in the U.S. Navy during WWII.

A similar thing happened to one of our clients that tried to apply for work with the Federal government at the age of 25. He could not get verification for his Citizenship. Eventually his other confessed he was brought over as a 3 year old illegally. But the Vet's story is even more interesting.

Davidson, from Centralia, Washington, told KOMO News that he discovered he wasn't a U.S. citizen when he was turned down for an enhanced driver's license he needed for a trip to Canada to visit relatives.

"We always figured because he was born to U.S. parents he's automatically a U.S. citizen," said Davidson's daughter, Rose Schoolcraft.

Davidson was born in British Columbia in 1916, but his parents didn't register the birth with the U.S. government to ensure they knew he was a citizen. He checked up on his citizenship before joining the Navy and was told by an inspector at the U.S. Department of Labor Immigration and Naturalization Service he had nothing to worry about. Now he worries that he won't be able to prove his citizenship, because his parents were born in Iowa before local governments started keeping records of birth certificates in 1880. "I want it squared away before I pass away," he says.

Read more...

A new bill — introduced by Senators John Kerry, a Massachusetts Democrat; Richard Lugar, an Indiana Republican; and Mark Udall, a Colorado Democrat — aims to give two-year visas to foreign entrepreneurs if they secure at least $100,000 in financing from qualified investors. After two years, the start-up must have at least five employees and $500,000.

The new legislation provides visas to the following groups under certain conditions:

1. Entrepreneurs living outside the U.S.—if a U.S. investor agrees to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. Two years later, the startup must have created five new American jobs and either have raised over $500,000 in financing or be generating more than $500,000 in yearly revenue.

2. Workers on an H-1B visa, or graduates from U.S. universities in science, technology, engineering, mathematics, or computer science—if they have an annual income of at least $30,000 or assets of at least $60,000 and have had a U.S. investor commit investment of at least $20,000 in their venture. Two years later, the startup must have created three new American jobs and either have raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.

3. Foreign entrepreneurs whose business has generated at least $100,000 in sales from the U.S. Two years later, the startup must have created three new American jobs and either have raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.

The investor must be a qualified venture capitalist, a “super angel” (U.S. citizen who has made at least two equity investments of at least $50,000 every year for the previous three years), or a qualified government entity.

The really good news is that this enables foreign students and workers who are already in the U.S. to qualify for a visa.

There’s a growing concern in the technology community that the country’s immigration policies are keeping talent out, at a time when China and other emerging markets are becoming more attractive. The bill has the support of more than 160 industry investors, including Brad Feld, who started the Foundry Group; Fred Wilson, a Twitter investor; Reid Hoffman, the founder of LinkedIn; and Shervin Pishevar, an angel investor.

Let's support the Bill and make it a reality.

This was expected and here is the latest update. The U.S. Department of Labor's Employment and Training Administration and its Wage and Hour Division today announced the publication of a proposed rule that seeks to improve the H-2B temporary nonagricultural worker program. The proposed rule, to be published in the March 18 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.

The H-2B nonimmigrant visa program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent and there are no qualified and willing U.S. workers available for the job. Note that this visa is not available for "temporary" agencies or other work placement agencies.

There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. You are eligible for the H-2B Visa provided that you have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work and that you intend to return to your home country on expiration of the visa.

In order to streamline and improve the program for employers, the proposed rule would create an H-2B registration process that would allow employers to conduct labor market tests closer to their date of need before applying for a certification. It also would eliminate job contractors as users of the program.

The department further proposes to improve U.S. workers' access to jobs and increase worker protections by creating a national job registry for all H-2B job postings; requiring employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance; enhancing transparency by requiring employers to submit agency agreements and through the use of foreign recruiters; reinstating the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns; and increasing the amount of time during which U.S. workers must be recruited.

Additionally, the department proposes to extend H-2B program benefits to workers employed alongside those recruited under the H-2B program; require employers to pay transportation costs and other fees; and enhance enforcement by giving the department's Wage and Hour Division independent debarment authority.

Read more...

As we are gearing up towards H1B filing season, recent update from USCIS. U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance.

The USCIS issued guidance in a memo on June 6, 2006 regarding H1B petitions that are eligible for exemptions from the H1B numerical limits (H1B cap).

The Memo addressed the fact that the word "at" is used regarding the exemption, rather than "by," as mentioned above. The USCIS acknowledged that this reflects a congressional intent to exempt foreign nationals who are not employed by exempt institutions, but who, nonetheless, perform employment that directly and predominantly furthers the essential purposes of such qualifying institutions. Third-party employers, therefore, can utilize this exemption if a foreign national is physically working at an exempt institution and has a job that "directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the qualifying institution." The third-party employer must show a logical nexus between the work of the beneficiary and the normal work of the qualifying institution.

The USCIS noted that, in many situations, qualifying institutions have contracts with third-party companies for onsite placement of workers. These employees perform jobs that otherwise would be performed by employees of the qualifying institution. Thus, they are doing work that was important to Congress in creating the H1B exemptions.

Please email us regarding this important update with any questions.

A national janitorial company, will lose over half its Minnesota work force after an immigration audit, making it the second major business in that state to be hit by an Obama administration crackdown on employers of illegal immigrants.

The audit by U.S. Immigration and Customs Enforcement will result in about 240 workers losing their jobs, the Service Employees International Union reported.

Harvard Maintenance began issuing dismissal letters to employees in early March and is in the process of terminating workers, according to the SEIU, which represents the workers. Harvard Maintenance gave workers 90 days to rectify irregularities in their employment-eligibility documents before informing them they could no longer work there. The Obama administration has made employers the cornerstone of its immigration crackdown that began in 2009.

ALL employers are required to verify the work eligibility and identity of all employees hired in the United States. It makes no difference if the employee is you your spouse…you still must maintain a properly executed Form I-9.

What Happens if My Company Gets Audited by ICE?

Once a company has been targeted for a Form I-9 audit, an ICE agent will visit the business and serve a Notice of Inspection (NOI). The NOI instructs the company to produce all current employees’ I-9 Forms, their payroll records, business licenses, and other appropriate documents. Additionally, ICE will also ask for all Form I-9s for employees terminated over the past 3 years.

The government gives the company 3 business days to produce all requested documentation. It is possible to ask for an extension.

In the fiscal year that ended Sept. 30, ICE conducted audits of more than 2,740 companies, nearly twice as many as the previous year. The agency levied a record $7 million in civil fines on businesses that employed illegal workers. It is unclear how many workers have been let go as a result of the investigations.

If you get a notice of inspection from ICE, please contact a competent Immigration Attorney immediately.

According to the LA Times, California reached a milestone late last month when federal immigration officials quietly announced that all 58 counties in the state are now participating in Secure Communities, a controversial program created to track and deport dangerous criminals.

Unveiled in late 2008, Secure Communities is billed as a showpiece of immigration enforcement. Under the Immigration and Customs Enforcement program, state and local police must check the immigration status of people who have been arrested and booked into local jails by matching fingerprints against federal databases for criminal convictions and deportation orders.

But today, Secure Communities is mired in problems. About 60% of the 87,534 immigrants deported under the program had minor or no criminal convictions, according to the U.S. Department of Homeland Security's statistics, even though the program was aimed at dangerous criminals.

We now know this is a flawed program that is not working for anyone.

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Our office has extensive experience assisting the clients in filing H-1B petitions. We also help the clients consider their options if the case is denied. Below is an example of the H-1B case that got approved even after the denial was issued.

The employer/petitioner was a large luxury hotel. The petitioner sought the services of the beneficiary in the position of a Food Service Manager.
The Immigration Service issued a Request for Evidence (RFE) in that case prompting the employer to submit additional evidence to establish that the position offered qualifies as a specialty occupation.

The employer submitted the detailed response to the RFE and extensive supporting documents to USCIS. However, the H-1B petition was denied because, in the opinion of the Service, the petitioner has not proved that the position qualifies as a specialty occupation.

We filed the motion to reopen the case, and were successful in convincing USCIS that the petitioner’s position of Food Service Manager does qualify as a specialty occupation for the H-1B purposes. The beneficiary was granted the H-1B status.

According to the regulations, the H-1B position must meet one of the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

For the first prong, USCIS usually relies on the text of the Occupational Outlook Handbook (OOH), a publication of the United States Department of Labor in determining whether the proposed position qualifies as a specialty occupation. However, the Service usually construes the OOH quite narrowly. In the denial decision of the above-referenced case, the adjudicating officer noted that the OOH does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. As a result, as the officer concluded, the proffered position cannot be considered to have met this criterion.

In our motion to reopen, we pointed out that the pertinent section of the OOH is written to reflect the educational requirements of all employers, including fast-food restaurants, chain restaurants, casual diners, small and medium sized hotels, and luxury large hotels and resorts with separate food and beverage departments. It is clear that the educational requirements differ among these employers. While most restaurants and small hotels might recruit qualified individuals without regard to their degrees, upscale large hotels require degreed individuals who have obtained a baccalaureate level of education in a specific specialty.
We pointed out that the size and the nature of the petitioner’s business should be taken into account. The petitioner employed 140 employees, had 223 guest rooms, and had gross annual income of $10 million.
When OOH states that most employers do not require degreed individuals for the same position, it, at the same time, implies that some employers do require bachelor’s degrees. The OOH also suggests that among various employers, the median salary of Food Service Managers with traveler accommodation employer is much higher than in limited-service eating places, full-service restaurants, or special food services. The higher salary suggests that the responsibilities of Food Service Manager at traveler accommodation facilities are more demanding than in other food and beverage facilities. We pointed out that it is logical to assume that the responsibilities of Food Service Managers at large luxury hotel accommodations are even more demanding that justify the requirement of a bachelor’s degree in a specific specialty.
Even though the Service requires documentary evidence to satisfy only one of the prongs of the test for “specialty occupation”, it is a better practice to include evidence on each of the prongs to make sure that if the Service does not accept one piece of evidence, it will accept other proof as an alternative.

For the second prong, the petitioner submitted numerous job listings and several letters from similar organizations, i.e., other employers in the same business – large luxury hotels and resorts to show that it is a common industry practice among these employers to hire individuals for the position of Food Service Manager who have at least a bachelor’s degree in hotel management or a related field, or its equivalent. Additionally, we submitted a letter from a hospitality expert attesting to the fact that large hotels always require candidates for the position of Food Service Manager to possess a bachelor’s degree in the specific field.

As an alternative to demonstrating that the degree requirement is common to the industry in parallel positions among similar organizations, the petitioner may show that the proffered position is so complex or unique that it can be performed only by an individual with a degree. For this, we explained the complexities and uniqueness of the Food Service Manager position in a luxury hotel setting and at the petitioner’s business in particular.

Even if, according to the OOH, Food Service Manager position does not require a bachelor’s degree, the petitioner’s circumstances are unique and involve a much higher level of specialized knowledge than that recognized in the reference sources, thereby justifying a bachelor’s degree requirement.

Nature of the petitioner’s business, the size of the employer, nature of the duties, the level of responsibility, among other factors, is taken into account when analyzing the complexity of the job duties.

In our case, the beneficiary would report directly to the Director of Operations and would be responsible for directing and supervising the employees of the entire Banquet Department and a restaurant of the upscale hotel. We explained the proposed duties of the beneficiary in detail and emphasized his discretionary decision-making authority and exercise of independent judgment.

For this case, we also compared and contrasted the job duties at the large luxury hotel with duties of Food Service Managers at diners, restaurants, small and medium sized hotels taken from the job listings of these establishments. It was obvious from the evidence presented that the duties of Food Service Manager at the petitioner’s luxury business were much more demanding and complex than duties of Food Service Managers at other establishments.
Additionally, to prove the necessity of a degreed Food Service Manager, we presented Hotel’s awards, promotional materials, and news articles involving the Hotel.

For the third prong, we demonstrated that the petitioner normally requires its applicants for the position of Food Service Manager to have at least a Bachelor’s degree in Hotel and Restaurant Management, Hospitality Management or an equivalent degree, together with professional work experience in the field.

The employer’s requirement of a Bachelor’s degree in a specialized field was substantiated by the petitioner’s job posting for the position of Food Service Manager where the employer emphasized the need of a BA in a specific specialty and by the degrees of other Food Service Managers of the hotel.

The fourth prong also talks about the complexity and uniqueness of the job duties. Here, we emphasized again the specialized and demanding nature of Food Service Manager’s job duties.

Therefore, based on the documentary evidence provided, it was clear that a Food Service Manger at the petitioner’s business needed at least a baccalaureate level of education in a specific field in order to fulfill the duties and to ensure the company’s success and continued growth.

Filing a motion to reopen is only one of the options. There are other options that may be available to you considering the circumstances of your case. If you have any questions regarding filing a motion to reopen or require additional information, do not hesitate to contact our office.

If an L petition presented by a Canadian citizen in conjunction with an application for admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return it to the applicant for admission.
The officer should instruct the applicant for admission to obtain the necessary documentation from the petitioner to correct the deficiency. Id. The officer should not accept the filing fee for a petition lacking necessary documentation or that is otherwise deficient. Id. Instead, the filing fee should be accepted once the necessary documents are presented or the deficiency overcome.

The foregoing paragraph contains several noteworthy observations. First, the Code of Federal Regulations governing the Canadian L petition adjudication procedures uses mandatory language, not permissive language. The regulations clearly state that the CBP inspecting officer “shall return” such a petition to an applicant. Officers do not have discretionary authority in this matter. Accordingly, CBP officers are required to return to the applicant any L‐1 petition lacking necessary documentation or that is otherwise deficient.
Second, officers should not accept a petition filing fee for any petition that lacks necessary documentation or is otherwise deficient. Of necessity, officers will be required to conduct an initial review of an L petition presented by a citizen of Canada concurrently with an application for admission to the United States in order to determine if the petition includes all necessary documentation or is otherwise deficient. Only after making such a preliminary review will an officer be able to determine whether the petition includes sufficient documentation and information or whether it should be returned to the applicant along with the tendered filing fee. Only when an applicant returns with sufficient documentation or information to overcome a deficiency may the officer accept the filing fee for the L petition.

Third, there is an implicit rationale underlying the procedures described in 8 CFR §214.2(l)(17)(iv). As noted in the section above, the petitioner, not the Canadian citizen applicant for admission, is responsible for preparing and filing the L petition. Furthermore, the petitioner is not required to appear when an L petition is filed, whether this takes place at a USCIS Service Center or at a port of entry.

Therefore, the Canadian applicant for admission, in most circumstances, will not have documentation or information demonstrating that the petitioner is a qualifying organization. Documentation relating to the duties to be performed by the beneficiary also is unlikely to be available at a port of entry. Such documentation normally would be needed to provide details concerning the qualifying nature of the duties performed. In apparent acknowledgment of these realities, the regulations instruct inspecting officers to return incomplete or deficient petitions to the applicant in order to gather the needed documents or information from the petitioner.

Clearly Deniable Petitions

In some cases, an L petition presented by a Canadian citizen concurrently with an application for admission to the United States will be clearly deniable. In such circumstances, the inspecting officer should accept the petition with the filing fee and notify the petitioner of the denial, the reasons for the denial and the right of appeal. 8 CFR §214.2(l)(17)(iv).
It may initially appear that there is a conflict between the regulatory mandate to return to an applicant an L‐1 petition lacking documentation or otherwise deficient, with the instructions to deny clearly deniable petitions. Upon closer examination, however, these two instructions are not difficult to reconcile. Consider first the definition of the term “deficient.” This word is defined as an item “lacking in some necessary quality or element.”1 Useful synonyms are terms such as incomplete, fragmental, fragmentary, partial. Id. In contrast, the term “clearly” is defined as an activity performed “in a clear manner.”2 Useful synonyms are terms such as “inarguably, incontestably, incontrovertibly, indisputably.”

When a petition is deficient, it is incomplete. Information or documentation will not be present with the petition. The absence of information will leave a question remaining about whether the petitioner is a qualifying organization or whether the beneficiary is eligible for classification as an L‐1 intracompany transferee. When a petition is deficient, it is only partially complete. There remains the possibility that production of additional documentation or information may demonstrate the petitioner and/or the beneficiary are eligible to utilize the L‐1 intracompany transferee category.

Conversely, a petition that is clearly deniable cannot be cured by presentation of additional documentation or information. No question remains unanswered by the documentation or information presented with such a petition. Instead, the facts will indisputably demonstrate that the petitioner is not a qualifying organization or that the beneficiary does not satisfy the eligibility requirements for L‐1 classification.

Continue reading "L1A Visas:Procedures for Handling Deficient or Deniable L Petitions for Canadians" »

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Here is the latest from the American Immigration Lawyers Association on the Visa Waiver Denials issue.

Following reports from AILA chapter USCIS liaisons that a favorable resolution on the question of adjustment eligibility for Visa Waiver Program (VWP) admittees has been reached, AILA Liaision has confirmed that USCIS HQ has instructed the field that USCIS retains jurisdiction to adjust an alien who was admitted under the VWP, whether or not the adjustment application was filed during the alien's 90-day period of admission. Follow our Blog for more info.

This recent update comes in a time when the San Diego filed office continues to deny applications of Visa Waiver overstays. I expect the new policy to be implemented in San Diego soon as well.

Mr. Skokos is, by all accounts, an accomplished security consultant. But the Department of Homeland Security doubts he is at the very pinnacle of his profession, so accomplished the world over that Mr. Skokos, a Canadian citizen who lives in Las Vegas, merits a special visa to live permanently in the United States. Nobody disputes that Nikolaos Skokos is adept at what he does, which is keeping unruly crowds away from Celine Dion, the super star singer.

The United States Court of Appeals for the Ninth Circuit, which normally sits in San Francisco but held a special session in Phoenix. After hearing arguments in the Skokos case, a three-judge panel took the issue under advisement.

There are numerous ways foreigners can petition to live in the United States, including random visa lotteries and asylum applications citing a risk of grave harm back home. Mr. Skokos is seeking to stay through a relatively small program that allows “aliens of extraordinary ability” — whether they are scientists, artists, athletes or even security consultants — to become permanent residents.

The EB1-EA green card is for aliens of extraordinary ability engaged in the arts, sciences, business, education or athletics. No job offer or labor certification is required. An EB1-EA petition may be filed simultaneously with another green card application. One petition may be approved faster than the other and can offer additional protection if one petition should be denied while another is approved.

In order to qualify for the EB1-EA, the applicant must have won a Nobel Prize OR show documentation in three of the following areas:

* Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
* Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
* Published material about the alien in professional or major trade publications;
* Evidence that the alien is a judge of the work of others in the field;
* Evidence of the alien’s original contributions of major significance to the field;
* Authorship of scholarly articles;
* Display of the alien’s work at artistic exhibitions or showcases;
* Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
* Evidence that the alien commands a high salary in relation to others in the field; or
* Evidence of commercial success in the performing arts.

For whom is an EB1-EA Green Card appropriate?

Foreign nationals who have received national or international acclaim for outstanding achievements in Arts, Sciences, Education, Business or Athletics and their immediate family members.

What are the requirements for obtaining an EB1-EA Green Card?

Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who has risen to the top of his or her field of endeavor. To be considered as an alien with extraordinary ability, the alien must have sustained national or international acclaim in the field of science, art, education, business or athletics, which must be recognized in the form of extensive documentation. The alien must be seeking to enter the United States to continue work in the field, and the entry of such alien must substantially benefit prospectively the United States.

Although no offer of employment (including labor certification)Â is required, for aliens with extraordinary ability the alien must include with the petition convincing evidence that he or she is coming to continue work in the area of expertise.

Mr. Skokos said he was a security consultant to the stars, a top-notch professional trusted to keep V.I.P.s like Ms. Dion out of harm’s way. “The quality of Skokos’ service and expertise in the field of celebrity security is so superior that it constitutes an original contribution of major significance in the field,” his lawyers argued in court filings that likened him to a famous athlete who breaks records.

I think is a tough one to decide. This is very unusual for an EB1 case, but with the sufficient evidence to meet that standard he may well be able to win this on Appeal. It seems that his lawyer is focusin on the background of the client as opposed to Mr. Soko's and that could be a problem. We had several unusual EB1 cases that were approved, but of course every case is different and every case is reviewed by a different officer. Good Luck!!

Beginning March 15, 2011 all Change of Address, (Form AR-11) and Alien's Change of Address, (Form AR-11 SR) will change filing locations. Now, you must file all change of address forms at the following address:

DHS/USCIS
Harrisonburg File Storage Facility
Attn: AR-11
1344 Pleasants Drive
Harrisonburg, VA 22801

Change of address forms mailed to the old location will be forwarded to the new filing location for 45 days beginning March 15, 2011 until April 28, 2011.
You also have the option of notifying USCIS of a change of address online. To change your address online or for more information about USCIS and our programs, visit www.uscis.gov.

In Texas proposed House Bill 2012 would create tough state punishments for those who "intentionally, knowingly, or recklessly" hire an unauthorized immigrant. Violators could face up to two years in jail and a fine of up to $10,000.

But unlike any other Bill before this one it has an interesting exception. Those who hire unauthorized immigrants would be in violation of the law -- unless they are hiring a maid, a lawn caretaker or another houseworker.

The Texas legislature convenes only once every two years, so Texas has not passed tough anti-illegal immigration laws like some other states. The result has been that unauthorized immigrants in those states are relocating to Texas. Example of other proposed Bills in Texas, one bill would place an 8% surcharge on all money wired from Texas to Latin America. About $480 million could be collected from money sent to Mexico alone, the representative said. The proceeds would be earmarked for state hospitals.

Another bill would require police officers to ask every person they stop what their citizenship status is.

So why the large exception on hiring unauthorized workers? Rep. Debbie Riddle's office explained that Texans shouldn't be punished for hiring lawn care companies who hire unauthorized immigrants and to avoid "stifling the economic engine" in Texas.

The Department of State, Office of Visa Services, advises the public of a notable increase in fraudulent emails and letters sent to Diversity Immigrant Visa (DV) program (Visa Lottery) applicants. The scammers behind these fraudulent emails and letters are posing as the U.S. government in an attempt to extract payment from DV applicants. While the DV lottery is a genuine U.S. government program, it is important to know enough about the DV lottery to protect oneself from fraud.

Please note: (1) the DOS does not charge any fees for participation in the lottery program and (2) they also do not advise "winners" (those selected to apply for legal permanent residence) by email. Notification is made by letter only. A genuine notification carries the personal data of the applicant. It does not include blanket requests for basic personal information. Fraudulent notifications sometimes ask for such information.

The DV lottery has an application procedure for participants. If one has not submitted this application through the DOS WebSite, within the established timeframes, one cannot be selected. The DOS does not select individuals at random for this benefit. Fraudulent winner notifications are sometimes received by individuals who have not even applied for the DV lottery.

So be smart and be safe. Be careful regarding any organizations that claim to be able to improve one's chances of success with the lottery application process. Read the fraud alert here