Visa Lawyer Blog

ICE officials are not happy this morning. Illegal immigrants arrested for petty crimes won’t be held in jail longer than necessary in San Francisco, even if federal immigration agents may want them detained for possible deportation.

Instead, starting Wednesday, deputies will treat those eligible for release just like U.S. citizens: They will be cited to appear in court. The new policy is his attempt to comply with a city law that prevents police from aiding federal authorities in non-felony crimes and a U.S. law that requires authorities to share fingerprints with immigration agents.

Under this policy, illegal immigrants who commit misdemeanors, such as disorderly conduct, trespassing or shoplifting, will not be held while the U.S. Immigration and Customs Enforcement (ICE) checks their status through a fingerprinting monitoring program.

Hennessey said the change is meant to coincide with the city’s “Sanctuary City” law, which aims to provide refuge for illegal immigrants.

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U.S. Senator Robert Menendez (D-NJ) introduced the Military Families Act. The Military Families bill would allow the noncitizen immediate family members of active military service members to apply to become lawful permanent residents of the United States.

This is a much needed bill that fills a gap at the intersection of military and immigration policy. Our military men and women have put their lives on the line to protect us and serve this country. Many of them are residents and have access to an accelerated path to citizenship because of the commitment and sacrifice they are making. However, their families, who are also sacrificing a great deal, remain in this limbo, with a family member fighting for the country that wants to deport them.

Until now, the only way to address the issue of military family members being deported has been through private bills. Although they provide some sort of relief, they are rare and only help one family at a time when there are hundreds if not thousands more suffering and living in the shadows.

Under the Military Families Act, the Department of Homeland Security would have the authority to adjust the status of an individual to that of lawful permanent resident if the individual is a parent, spouse, child, son or daughter of an Armed Forces member who is serving or has served honorably in an active-duty status in the military, air or naval forces of the United States or the immediate relative of an Armed Forces member who, after September 11, 2001, died as a result of injury or disease incurred because of his or her service. The bill would also assist the sons and daughters of Filipino World War II veterans who bravely served our country and whose immigration status has been long deferred due to numerical limitations on immigrant visas.

This legislation is not only patriotic and American, but protects the very essence of this country and the values we believe in. It applauds sacrifice, loyalty, honesty and bravery while guarding the most important value of them all, family.

The bill is appropriate as our nation celebrates Memorial Day and honors those who have died while in service to our country. Happy Memorial Day to All.

In a 5-3 vote, the court concluded that federal immigration law doesn’t prevent the state from revoking the business licenses of companies that violate state law. The Arizona law also requires employers to use the federal government’s web-based E-Verify system to determine whether potential employees are eligible to work within the United States. The court upheld this provision, saying it is “entirely consistent” with federal law.

Roberts, backed by his four conservative colleagues, said "Arizona went the extra mile in ensuring that its law tracks (the federal law's) provisions in all material aspects."

In dissent, Justice Sonia Sotomayor noted E-Verify is a voluntary program, and said criticism that the federal government is not doing enough to enforce the law is irrelevant.

This case could serve as a bellwether to how the court will view a larger, more controversial state immigration law from Arizona. Much of that statute was tossed out by a federal judge in August and is currently pending at a federal appeals court. It would, among other things, give police authority to check a person's immigration status if officers have a "reasonable suspicion" that the individual is in the country illegally.

Click here to read the case

USCIS announced the launch of a federal initiative to raise awareness about the rights, responsibilities, and importance of U.S. citizenship. USCIS Director Mayorkas will launch the initiative online on 5/25/11.

The initiative will run during the summer across the country on more than 250 radio stations, 400 websites, and through national and local print advertisements, in this first phase of a planned multi-year effort. Messages will run in Spanish, English, Chinese and Vietnamese – languages spoken in the top 10 countries of origin for permanent residents. Nearly 8 million permanent residents are currently eligible to apply for citizenship and most reside in California, New York, Texas and Florida.

The initiative will promote awareness of the rights, responsibilities, and importance of United States citizenship, and the free resources available to permanent residents and immigrant-serving organizations. Immigrants will be invited to learn more about citizenship and directed to the USCIS Citizenship Resource Center, a one-stop web portal offering free educational tools to support immigrants and immigrant-serving organizations at www.uscis.gov/citizenship.

TN Visa Seminar Details

Start Working in the U.S. within 30 Days

This tele-seminar will provide you with the information you need to start working in the U.S. It for Canadians and Mexicans who wish to work in the U.S. It's free and informative. This will be a live web presentation and seating is limited so register quickly.
Learn the TN Visa Process

Under NAFTA, the TN Visa, or TN-1 Visa, there are key elements that you need to do to successfully obtain your visa and begin working in the U.S. Learn what they are in this seminar.
Learn How to Be Self-Employed - Alternatives to the TN Visa

There are many Occupations that do not qualify for the TN Visa. Learn how to be self-employed and work in the U.S.. Contractors and small businesses will learn how to operate in the U.S. quickly and easily. This is a topic not to be missed.
Learn How to Discuss the TN Visa in a Job Interview

The biggest obstacle people encounter is not knowing how to discuss the TN Visa with a potential employer during an interview. Most employers don't understand the TN Visa and will not hire you based on this, unless you know what to say to convince them. We'll teach you what to say.

Click here to register

The Immigration and Nationality Act (Act) provides for the admission of different classes of nonimmigrants who are foreign nationals seeking temporary admission to the United States. The purpose of the nonimmigrant’s intended stay in the United States determines his or her proper nonimmigrant classification. Some classifications permit the nonimmigrant’s spouse and qualifying children to accompany the nonimmigrant to the United States or to join the nonimmigrant here. To qualify, a child must be unmarried and under the age of 21.

F-1 nonimmigrants, as defined in section 101(a)(15)(F) of the Act, are foreign students coming to the United States to pursue a full course of academic study in SEVP-approved schools. An F-2 nonimmigrant is a foreign national who is the spouse or qualifying child of an F-1 student.

M-1 nonimmigrants, as defined in section 101(a)(15)(M) of the Act, are foreign nationals pursuing a full course of study at an SEVP-approved vocational or other recognized nonacademic institution (other than in language training programs) in the United States. An M-2 nonimmigrant is a foreign national who is the spouse or qualifying child of an M-1 student.

SEVP is the DHS program that administers SEVIS. It ensures that government agencies have essential data related to nonimmigrant students and exchange visitors to preserve national security. SEVP provides approval and oversight to schools authorized to enroll F and M nonimmigrant students and gives guidance to both schools and students about the requirements for maintenance of their status.

ICE SEVP I-17 FAQs provide information for schools about SEVP certification, including background on SEVP and SEVIS, SEVP certification basics, an overview of the SEVP certification process, preparing the petition for SEVP certification, and preparing for a site visit.

Click here for more info for Schools

CPB released a report on 5/19/11 of statistics on U.S. Border Patrol's total apprehensions of undocumented individuals by fiscal year, from FY1999 through FY2010. The report also includes a breakdown of such apprehensions from Mexico, and from countries other than Mexico.

* U.S. Border Patrol agents apprehended 463,382 individuals smuggled across the border, including 8,905 smugglers. (3,027 of the smugglers apprehended were deemed “deportable.”)
* U.S. Border Patrol agents apprehended 59,017 “Other Than Mexican” illegal aliens through October 7, 2010.
* Among the nations represented in apprehension statistics are the four countries currently on the State Department’s list of “State Sponsors of Terrorism,” Cuba (712), Iran (14), Syria (5) and Sudan (5), as well as Somalia (9), Afghanistan (9), Pakistan (37), Saudi Arabia (5) and Yemen (11).
* Overall, U.S. Border Patrol agents apprehended 663 “Aliens from Special Interest Countries.” These countries are deemed “special interest” because of their suspected ties to terrorism.
* The countries yielding the highest “Other Than Mexican” apprehensions include: Guatemala (18,406), El Salvador (13,723), and Honduras (13,580).

(U.S. Border Patrol estimates that three out of every four illegal aliens who cross the border evade apprehension.)

U.S. Citizenship and Immigration Services (USCIS) today proposed significant enhancements to the administration of the USCIS Immigrant Investor Program, commonly referred to as the EB-5 Program—transforming the intake and review process for immigrant investors as part of the Obama administration’s continued commitment to improve the legal immigration system and meet our economic and national security needs for the 21st century.

The EB-5 Program makes 10,000 visas available annually to immigrant investors who invest in commercial enterprises that create at least 10 U.S. jobs. EB-5 investors may petition independently or as part of a USCIS-designated Regional Center.

“Congress created the EB-5 Program in 1990 to attract investors and entrepreneurs from around the globe to create jobs in America,” said USCIS Director Alejandro Mayorkas. “We are dedicated to enhancing this program to ensure that it achieves that goal to the fullest extent possible.”

USCIS is proposing three fundamental changes to the way it processes EB-5 Regional Center filings. First, USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented. USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee.

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

This proposal will be online until June 17, 2011, for public comment—providing stakeholders an opportunity to offer feedback on the proposed changes to the administration of the EB-5 Program.

We will keep our readers posted.

Attorney Habib Hasbini from our TN department just came back from the border with a client, he put in writing his most recent impressions and frustrations.

Heading to the U.S./Mexican border in San Diego, arriving at the immigration, U.S. port of entry, Tijuana, depending on when you arrive, you witness a long trail of people, possibly and easily topping two or three hundreds, again depending on the hour you arrive, attempting to enter the U.S. soil.

Along the trail, you witness the Mexican officers as they oversee, standing by, the free and smooth operation of the steps into U.S. territory.

TN-Visa applicants, have a quite different treatment. Akin to Sentri pass holders, TN-Visa applicants receive VIP treatment by bypassing a relatively long trail and leapfrogging into the immigration unit, inside the U.S. port of entry.

Depending on the hour, (strongly advised to get in or around between 9:00 and 9:30 a.m.) a considerably shorter line lies as you step into the immigration unit.

Inside the immigration unit, you see an L-shape counter as officers (often lacking requisite knowledge and competence) sit behind. The Immigration hub, akin to a beehive, process secondary inspection travelers, entry permits, visa interviews, I-94’s, and Parole authorizations.

Travelers, seemingly worried and anxious, await in artificial lines, inside. Among the seemingly unpopular (and often-despised) group, are immigration attorneys, as they are instructed, with premeditation and deliberation, to remain behind the scenes and “Wait outside.” Inconsistency, let alone arbitrariness, best describe the decisions officers undertake, at the end of interviews. U.S. Constitution’s Due Process, let alone, the innate principle of right to assistance to counsel, are seemingly non-existential, inside the hub. Conscience-shocking!!!

Inside the hub, emotions and stakes are running high, with no opportunity to hear or rebut the often-self-initiated precedents, or alleviate the woes and allay the fears and concerns, resulting from seldom-used reasoning.

When approached to inquire about the decision and its rational or lack thereof, counsels are told “Come back another day.”

What happened inside? Who knows!!!

We have been following the Visa Waiver Adjustments crisis since it started in July 2010. In a recent meeting between local AILA lawyers and the USCIS San Diego office the following question was raised by the local AILA lawyers:

USCIS Headquarters meeting on April7,2011 relating to adjustment following a Visa Waiver Overstay, AILA minutes distributed indicating " AILA requests that USCIS immediately issue guidance to the field clarifying that an alien admitted under the Visa Waiver program may adjust status as an immediate relative notwithstanding the filing of form I-485 after the expiration of the Visa Waiver period of admission.

USCIS National Response: All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the US under the visa waiver program and overstayed on their merits, UNLESS, the potential beneficiary is the subject of INA section 217 removal (deportation) order. Additionally filed office have been instructed to hold in abeyance all visa waiver adjustment applications for potential beneficiaries who have been ordered removed under section 217 INA. We are drafting final guidance including an AFM (Adjudicator Field Manual) update on this topic we expect to issue soon."

San Diego Office Response:

The San Diego office has followed up with its own emails on this subject with USCIS HQ, and was advised that when there is a visa waiver overstay they should consider the totality of the circumstances and adjudicate "on the merits". A section 217 violation is an ICE issue that can not be ignored. (AILA lawyers argued that section 217 overstay is not more serious than any other 214 Tourist visa overstay which is excused for immediate relatives; but the San Diego office District 24, belives they need to be distinguished because of the contract the immigrant signs when coming on the visa waiver. The San Diego office would like to see a good reason for the overstay to favorably adjudicate an I-485 on the merits in the exercise of discretion. We are looking forward to more specific guidance.

So there you have it, San Diego Immigration office finally shows some flexibility and will start approving cases that can explain a good reason for an overstay. What such reasons may be, we will update you shortly. Overall this is a great shift in policy and we hope to report more god news soon. We still suggest to Visa Waiver overstay clients to be careful when filing for adjustment of status and consult an experienced lawyer before filing the case.

In a recent Article by David Leopold, president of the American Immigration Lawyers Asscoaition, published in the May issue of Bloomberg Law Journal exploring three concepts — prosecutorial discretion, deferred action, and parole — that are being discussed in public debates but are frequently misunderstood.

According to David Leopold, Only President Obama knows for sure whether he will act on any of the options described in his article—be it on an individual basis or on behalf of a larger category of individuals. One thing we can be sure of is that, if he does implement a major executive action, he will be promptly accused for transgressing the limits of his legal powers. Such allegations would be baseless.

The executive branch has well‐established authority as well as the duty to exercise prosecutorial discretion at all times in the enforcement of our immigration laws. Whether it is deferred action, parole, or something else, these concepts are grounded in statute, regulations and sound principles of law enforcement. Those who assail the President will no doubt have lots of arguments to draw upon. But the President's lack of executive branch power is not one of them.

Great article, puts things in perspective. Click here for the article Download file

U.S. Immigration and Customs Enforcement (ICE) published on its website an expanded list of science, technology, engineering and math (STEM) degree programs that will qualify eligible foreign national students for extended optional practical training (OPT). All foreign students in F-1 nonimmigrant status who have been enrolled on a full-time basis for at least one full academic year in a college or University certified by the ICE Student and Exchange Visitor Program (SEVIS) are eligible for up to 12 months of OPT to work for a U.S. employer in a job directly related to the student's major area of study.

However, under an interim regulation published in 2008, F-1 students who graduate with a degree in one of the approved STEM degree programs are eligible to remain in the U.S. and extend the OPT period for an additional 17 months. The Revised STEM degree list, available on the ICE website at http://www.ice.gov/doclib/sevis/pdf/stem-list-2011.pdf, adds 50 degree programs which will now qualify for the 17 month OPT extension. Degree programs in agricultural and nutrition sciences, neuroscience, mathematics and computer science, psychology, pharmaceutics and drug design, and business statistics are among those that have been added to the list of approved degree programs. The ICE announcement indicates that the expansion of the degree list is part of the administration's effort to address shortages of scientists and technology experts in certain STEM fields.

Much has been said about the Management Consultant TN category, some classify it as the most difficult to obtain. In this installment of the TN Visa coverage, Attorney Andrew Despositio we will go over what it takes to be a Management Consultant for a company.

The Management Consultant is a great way to work with almost any company, since companies are constantly seeking consultations on how to best manage their business. The Management Consultant is perfect for the professional who has a lot of experience working for different types of businesses or just one business. It is a great position for a person who wants to help a fledgling company increase their revenue, or for a well-established company seeking new ways to generate more revenue. If you have a background in Physics, you can be a Management Consultant. If you have a background in Engineering, you can be a Management Consultant. If you have a background in Internet Marketing, Public Relations, or Social Media even, you can be a Management Consultant. The Management Consultant is the most versatile TN position available. However, there are a few parts of the Management Consultant TN visa that must be addressed before applying as one.

What it means to be a Management Consultant

Although there are no guidelines under the provisions that govern the TN visa, the Occupational Outlook Handbook published by the U.S. Department of Labor offers some guidance on what a Management Consultant is expected to do. In essence, the Management Consultant is expected to analyze and propose ways to improve an organization's structure, efficiency, or profits. They are required to collect, review, and analyze information in order to make recommendations to the managers of a company.

The Management Consultant must first define the nature and extent of the problem that they have been asked to solve. This is usually outlined in the job duties provided by the company in need of a Management Consultant. During their employment, the consultant will analyze relevant data—which may include annual revenues, employment, or expenditures—and interview managers and employees while observing their operations.

The consultants then develop solutions to the problem. While preparing their recommendations, they take into account the nature of the organization, the relationship it has with others in the industry, and its internal organization and culture. Insight into the problem often is gained by building and solving mathematical models, such as one that shows how inventory levels affect costs and product delivery times. Once the Management Consultant has decided on a course of action, they report their findings and recommendations to the client.

Their suggestions usually are submitted in writing, but oral presentations regarding findings are also common. For some projects, management analysts are retained to help implement their suggestions.

In addition to the Management Consultant’s role with the company, the consultant can work for a variety of different types of companies.

A Management Consultant could be needed for a small company trying to improve its efficiency in some areas. A consultant could be needed for a large company that just opened a new division and therefore need to reorganize and restructure the jobs within the company. The consultant could come in to help a company enter a new market with its products, or help the company remain competitive within the market it currently competes in. Management Consultants also work for private and public organizations.

Statements of Experience

Under Appendix 1603.D.1 of the TN visa, the employee applying for this visa may either show they are a Management Consultant with a bachelor’s degree in the related profession, or by showing the equivalent professional experience, as established by statement or professional credential attesting to five years experience as a management consultant.

Now statements attesting to the five years experience can be offered through one or multiple individuals. If you worked in a management position for one company for several years, you could get a statement attesting to your consulting experience from that one company. If you worked at several places over the years, you can get statements attesting to your management consulting experience as well. So long as the statements add up to at least 5 years of management consulting experience, this requirement will be met for the position.

Consulting Agreement

In addition to having a well outlined consulting position in statements verifying one’s consulting experience, a consulting agreement is also required when applying for the TN Visa. Because consulting positions are paid at an hourly rate, the consulting agreement will outline the agreement terms, compensation, confidential information provisions, privacy provisions, warranties, indemnification, and liability limits between the company and the consultant. It is used to demonstrate the nature of the consulting position to the immigration officer in that the consultant is not an employee of the company. Although a company may choose to put the Consultant on payroll and handle taxes as the two parties agree, the Consulting Agreement still shows how the Management Consultant is ultimately an independent contractor.

Period of Consultation

It is generally recommended that a Management Consultant position should last no more than one to two years. That means the duration of this TN Visa is shorter than what is allowable under the TN Visa provisions. The reason behind having a consultation agreement for one or two years is to ensure that the consulting job is for a reasonable time. The longer the consulting agreement lasts, the greater the justification for the need of a consultant for such a long period of time.

Having a Managing Consultant for three years could raise the suspicions of the immigration officer for company’s need to keep an independent consultant around for such a long period. This does not mean that the consulting position will only last one or two years. In fact, the consulting position could last longer since the TN Visa is renewable. This is an important consideration when trying to find a position as a Management Consultant.

Conclusion

In short, the versatility of the Management Consultant position is great for getting a TN work visa in the U.S. Its open-ended requirements regarding education and work experience make working within any particular market as a consultant a fairly simple process. Having the right lawyer capable of using your work experience to meet NAFTA requirements as a Management Consultant is also important to ensure that you secure your position. Feel free to email us with any questions.

Today, during a speech from El Paso, Texas, President Obama laid out his vision for improving the United States immigration system.

While the speech focused on a wide range of immigration reform issues, President Obama highlighted several topics that are of critical importance to the economy and to the business community. As the economy continues to recover, the President made clear that immigration reform is vital to this cause. He recognized that "in a global marketplace, we need all the talent we can get - not just to benefit those individuals, but because their contributions will benefit all Americans." This emphasis was echoed by the President's top advisors: "We can't out-educate, out-innovate and out-build our competitors without an immigration system that works for our economy."

The White House also released a Blueprint for Building a 21st Century Immigration System, which documents the Administration's immigration policy goals.

Arizona will appeal directly to the US Supreme Court in a bid to overturn an injunction blocking key parts of the state’s controversial immigration law, state officials announced today.

Gov. Jan Brewer said she and Attorney General Tom Horne had decided to take the case directly to the nation’s highest court, asking it to examine whether US District Judge Susan Bolton acted correctly when she issued her injunction in Phoenix last summer.

A three-judge panel of the Ninth US Circuit Court of Appeals upheld the injunction on April 11. Arizona could ask all active judges on the Ninth Circuit to rehear the appeal, but state officials decided it would be faster to take the case directly to the Supreme Court. Expect another showdown.

The Arizona law, known as SB 1070, required state and local police during a valid stop to check the immigration status of anyone they suspected might be in the US illegally.

Opponents complained that it could lead to racial profiling.

The law also required immigrants to carry federal immigration papers, made it illegal for undocumented immigrants to work in Arizona, and authorized warrantless arrests of anyone who had committed a deportable offense.

We will keep you posted.

Here we go again. When Obama's Democratic Party controlled the House and Senate, Congress failed to pass an immigration bill that would have provided a path to Residency and later Citizenship for some illegal immigrants who entered America as children. The DREAM Act died in the Senate in December due to a Republican filibuster.

With Republicans now controlling the House and holding a stronger minority in the Senate, the chances for any comprehensive immigration reform are considered non-existent.

Obama travels to Texas on Tuesday to make the case that his administration has worked hard to secure the border and the time has come for Congress to deal with the 10.8 million people already in the U.S. illegally.

He will also argue that those who care about this issue need to step up pressure on Congress to act, a point he has made privately in a string of meetings with business executives, evangelical leaders and Hispanic celebrities.

Many activists blame the White House for not making the issue more of a priority, and Tuesday's speech is an effort, in part, to shift attention to Republicans who are blocking action.

Many Republicans and some Democrats oppose the measures Mr. Obama favors that would create a path to citizenship for some people who entered the country illegally, saying it would reward law-breaking. Opponents also say not enough has been done to secure the border with Mexico. The White House says it has put more "boots on the ground" along the southwest border than ever before and has cracked down on employers who hire undocumented workers.

The administration has also deported a record number of illegal immigrants, a point that has angered Hispanic activists. Federal officials say deportations of illegal immigrants hit a record 392,000 in fiscal year 2010.

Hoping to push through the political stalemate, Mr. Obama has held private meetings to discuss immigration with political figures such as New York Mayor Michael Bloomberg, business leaders such as John Engler, president of the Business Roundtable; and religious leaders such as Leith Anderson, president of the National Association of Evangelicals.

Read more....

U.S. Citizenship and Immigration Services (USCIS) today announced a final rule that adopts, without change, an interim rule to improve the integrity of the Employment Eligibility Verification (Form I-9) process. USCIS received approximately 75 public comments in response to the interim rule, which has been in effect since April 3, 2009.

The main changes made by the interim rule and adopted by the final rule include: prohibiting employers from accepting expired documents; revising the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of acceptable documents that employees may present to verify their identity and employment authorization is divided into three sections: List A documents, which show identity and employment authorization; List B documents, which show identity only; and List C documents, which show employment authorization only.

The final rule will be published in the Federal Register tomorrow and will be available at www.uscis.gov. The final rule is effective on May 16, 2011. Employers may continue to use the current version of the Form I-9 (Rev. 08/07/2009) or the previous version (Rev. 02/02/2009). The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) was updated on Jan. 5, 2011, and is available for review at www.uscis.gov/files/form/m-274.pdf.

Let us know if we can help in your I-9, E-verify or Public Access Files compliance.

Eric Holder vacated the BIA’s order and remanded the matter to the BIA to determine whether and how the constitutionality of the Defense of Marriage Act impacts respondent’s eligibility for cancellation of removal, see Matter of Dorman.

DOJ Secretary Eric Holder announced that he has vacated — or essentially wiped out — a decision by the Board of Immigration Appeals in reference to a recent case in which the BIA applied DOMA’s Section 3. In his decision, Holder listed the criteria the BIA should consider:

1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law;
2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act;
3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and
4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

Attorney Eric Berndt of the National Asylum Partnership on Sexual Minorities at the National Immigrant Justice Center told Metro Weekly that Holder’s decision “adds some heft to our requests for prosecutorial discretion in individual cases in which the foreign partner” of a same-sex bi-national couple is seeking a green card because of his or her citizen same-sex partner.

Holder’s decision isn’t just significant because he is asking the BIA to stop and reconsider this specific deportation, he has chosen to vacate a decision involving a civil union rather than a marriage.

Expect more states to follow this trend. Virginia has joined the list of states requiring certain companies contracting with the state to enroll in and use the E-Verify program. SB 1049, recently approved by Governor McDonnell, adds a new section 2.2-4308.2 to the Code of Virginia.

A spokesperson for the Governor’s office stated that the acceleration of the E-Verify requirement was due in part to recent upgrades in the E-Verify system, including the launch of the E-Verify Self-Check tool, which went live March 21. Provided by the Department of Homeland Security, this new web tool is available to workers for the purposes of checking the accuracy of their information in the relevant databases (Social Security Administration and DHS). The initial release is available only to individuals with addresses in Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia. The Self-Check tool asks certain questions aimed to verify the identity of the individual. Once verified, the individual can then confirm whether or not the relevant databases accurately reflect his or her appropriate work authorization status.

The new provision will apply to employers that have more than an average of 50 employees for the previous 12 months and that are entering into a contract to perform work for, or provide services to, any agency of the Commonwealth if the value of the work or services is in excess of $50,000. Affected employers must enroll in and utilize the Department of Homeland Security E-Verify program to verify the employment eligibility of new hires performing work pursuant to those contracts.

The law is scheduled to take effect on December 1, 2013; and it appears that it will be applicable to new contracts entered into after that date. Any employer found to have violated the E-Verify requirement can be debarred from contracting with any agency of the Commonwealth of Virginia for a period of up to one year.

The debarment ceases once the employer registers and participates in the E-Verify Program.

This was long overdue but here are the latest on the Tri Valley story. A federal grand jury here has indicted the president of a Pleasanton, Calif., university on 33-criminal counts, charging her with an array of violations, including visa fraud, money laundering and alien harboring, as a result of a two-year investigation by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI).

Tri-Valley University President Susan Xiao-Ping Su, 41, who also served as the school's chief executive officer, is accused of engaging in a two-year scheme to defraud the Department of Homeland Security (DHS) by submitting phony documents in support of Tri-Valley University's applications to admit foreign nationals on student visas. The indictment further alleges that after obtaining such approvals, Su fraudulently issued visa-related documents to student aliens in exchange for "tuition and fees."

Su was taken into custody Monday morning at her Pleasanton, Calif., home by HSI special agents. She made her initial appearance here in federal court shortly after her arrest.

In carrying out the scheme, Su is accused of making multiple false representations to DHS through Tri-Valley University's use of the Student and Exchange Visitor Information System (SEVIS), which the U.S. government uses to monitor the "F-1" student visa program. Through her false representations, Su was able to unlawfully obtain and issue F-1 visa-related documents without regard to the students' academic qualifications or intent to pursue a course of study required to maintain a lawful immigration status.

According to the indictment, Su admitted and maintained foreign students in exchange for tuition and other payments. In furtherance of the F-1 visa scheme, Su also allegedly harbored multiple Tri-Valley University student-employees to assist her in making the false representations to SEVIS. The indictment further alleges the defendant engaged in multiple money laundering transactions totaling more than $3.2 million using proceeds she derived from the visa fraud scheme.

Read more..

U.S. Citizenship and Immigration Services (USCIS) has fully implemented the Secure Mail Initiative (SMI), which uses U.S. Postal Service (USPS) Priority Mail with Delivery Confirmation to deliver certain immigration documents in a safe, secure and timely manner. This is made possible by a partnership between USCIS and the USPS. The SMI enables USCIS to confirm delivery of permanent resident cards and documents pertaining to travel and employment authorization. With USPS tracking information, USCIS customers can easily stay up-to-date on the delivery status of their documents and USCIS can confirm that these essential documents were delivered to the proper address.

SMI provides USCIS customers many benefits, including:

* The ability to track the status of their documents with USPS tracking information
* Quicker delivery—on average, documents sent through USPS Priority Mail should arrive two to four business days sooner than with first-class mail

Customers who receive notices of approval can contact USCIS’s Customer Service Center at 800-375-5283 to request tracking information for their documents. USCIS customer service representatives will provide customers with their USPS tracking number and current USPS delivery status. Customers should wait at least two weeks after getting their approval notice before calling for information regarding their cases. When requesting tracking information, customers must also provide information from the receipt notice they received when they submitted their initial application.

The Department of State (DOS) has issued a regulation that broadens the authority of consular officers to revoke a visa at any time subsequent to issuance of the visa, including when the individual is already in the U.S. Additionally, the regulation allows consular officers and designated officials within DOS to revoke a visa provisionally while considering a final visa revocation.

This rule is effective April 27, 2011. DOS did not issue the regulation through notice and comment rulemaking on the basis that it involves a foreign affairs function of the United States and, therefore, is exempt from those procedures.

Pursuant to section 221(i) of the Immigration and Nationality Act (INA), DOS may determine that a visa should be revoked when information reveals that the applicant was originally, or has since become, ineligible or may be ineligible to possess a U.S. visa. In testimony before Congress in 2004, DOS stated that it had revoked 1,250 visas since September 11, 2001, based on information suggesting possible terrorist activities or links. Congress and the Government Accountability Office (GAO) have put pressure on DOS and the Department of Homeland Security (DHS) to improve their policies regarding visa revocations.

If DOS revokes an individual’s visa, the information will be uploaded into the Consular Lookout and Support System (CLASS) database and the foreign national may not use the visa for travel to the U.S. Though DOS will seek to notify the traveler, the revocation is effective irrespective of whether the foreign traveler knows about the revocation.

Separately, the INA allows the government to remove (i.e. deport) an individual whose nonimmigrant visa has been revoked under section 221(i). There is no judicial review of the decision to revoke the visa, but there is judicial review in the context of a removal proceeding if the visa revocation is the sole basis for removal.

Expect more denials at the port of entry to the US by individuals not aware that their visa has been revoked. I understand the need for more security but this may not be the way to go.

We all agree he needs to do more for Immigration. Obama and his aides met for an hour in the White House Roosevelt Room with a dozen people, including actresses Eva Longoria and America Ferrera and several hosts of Hispanic news programs.

Attendees said the president reminded the group of his push to create a path to citizenship for the estimated 11 million people who live in America but don’t have legal status, the majority of whom are Latino. He said that Democrats in Congress would continue to call for passage of the Dream Act, a provision that would make it easier for the children of illegal immigrants to gain legal status by serving in the U.S. military or graduating from college.

Obama did not promise to reduce the number of deportations of people who are in United States illegally, they said. Those deportations have increased under his administration.

Some guests said Obama has done little for immigration reform in the last two years compared with issues such as health care.

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