Visa Lawyer Blog

We have been duplicating a immigration policies of continental European –countries similar to France as good as Germany – which have utterly unsuccessful to confederate as good as cushion their populations

America is still distant forward of a rest of a world. We still do immigration improved than a lot of a rest of a world. But if America will not start changing the way we look at Immigration and Immigrants, how we welcome them and embrace their skills, we will loose big time.

Fareed Zakaria put it nicely in his latest article on CNN:

Lately, I've been thinking about how the United States is different from Greece. One of the biggest differences that sets the United States apart from every other rich country in the world is that America is demographically vibrant.

Almost every rich country in the world faces problems of the welfare state which are technically fixable by reducing entitlements, raising retirement ages and working healthcare costs. But the one thing you can’t change is demographics.

Almost every rich country in the world is going to get older and older and older.

All these older people are going to have to draw benefits and pensions. Even more importantly, this means fewer young workers will be on hand to pay taxes.

At the end of the day, this is why the Japanese system has found it so difficult to get growth back. It is the first major country in the world that is experiencing actual population decline. Italy is next on that list. Germany is not far behind. Even China is going to face a demographic challenge.

The United Nations just released a report, which said that in the next 30 to 40 years, China is going to lose 100 million people. No country has ever been able to be a vibrant, great power without being demographically vibrant.

The United States is the huge exception to the rule of rich countries shrinking. The U.S. is going to be growing in population for the foreseeable future. By 2050, the U.S. will have 400 million people.

American demographics remain very healthy. While all the other countries go through this ageing cycle when they grow rich, America is the exception.

Why?

It’s entirely because of immigration.

There are two things that set the U.S. apart:

One is we still take in more immigrants legally than the rest of the world put together.

Two is that our immigrant population tends to reproduce at a slightly higher rate (they are still somewhat old-fashioned, if you will).

So those two things mean that our country is going to be demographically vibrant.

In recent months, the L-1A visa has been under attack by Immigration. More Requests for Evidence and more denials have been forthcoming on L-1 visas than have been issued in the past. Such issues that have arisen recently include the adequacy of the employer’s office space, the nature of the business itself, and even ownership concerns. What is more vexing is when Immigration sends a Request for Evidence asking for more evidence, providing the evidence asked for, and then receiving a rejection notice on a totally unrelated issue that was never raised in the Request for Evidence. Andrew Despositio, Esq. from our office with our team won an amazing motion to re open on a difficult L1A case denial.

Recently, our office submitted an L-1 petition on behalf of a company with a newly founded subsidiary in the U.S. The subsidiary is in the business of marketing the hearing and eye protection that is manufactured and distributed by the parent company in the foreign country. The subsidiary established that it had a legitimate need for an employee from the parent company to act as an executive/manager under the L-1A visa.

Once the case was submitted, a Request for Evidence came back asking to substantiate the business premises, the parent company’s premises, a feasibility study of the subsidiary’s business made by the parent company, insurance statements from the subsidiary, bank statements from the subsidiary, and a lease agreement from the subsidiary. All of these documents were provided to immigration to fulfill each request it made. In the end the case was still denied.

The denial was puzzling because if everything immigration requested was given to them, then why would the case still be denied? The immigration officer raised an issue that was not brought up in the Request for Evidence. The immigration officer raised the issue of ownership, primarily that because our beneficiary was also the majority owner of the parent company, there should be more evidence to show the ties to the beneficiary’s home country are such that he will return at the end of the visa term. The immigration officer cited 8 C.F.R. 214.2(l)(3)(vii) which requires that a majority stockholder of a company provide more evidence that the services will be temporary and the assignment abroad is temporary.

The immigration officer next cited Matter of Isovic, 18 I. & N. Dec. 361 (Comm. 1980) as controlling in our case. If the facts of this case were applied to our case exactly, it would have been correct to cite this case because it stands for the premise that a majority stockholder must provide greater evidence to prove the temporariness of the beneficiary’s transfer. However, the facts of the case made note of the procedure that was taken by immigration and the response to that procedure by the petitioner.

The facts in Matter of Isovic show that the petitioner was specifically asked in a Request for Evidence for further documentation demonstrating the temporary nature of the beneficiary’s stay in the U.S., that the petitioner failed to provide such documentation, and therefore the immigration officer was correct in denying the petitioner the L visa for its beneficiary.

Unlike Matter of Isovic, our client did provide evidence that he has ties to his home country such that his transfer to the U.S. would be temporary. The matter was never raised in the Request for Evidence by immigration, yet when they denied the visa it was the sole reason for denial. It made sense that after all that time and money was spent to submit the L-1A petition, a Motion to Reopen/Reconsider was the next logical step in the process.

The Motion to Reconsider approach was simple. First, address the elements of what qualifies for an L-1A visa. Second, reestablish the elements that have already been met based on the record submitted. Third, address the issue that was raised in the denial and attack the issue. Our response reestablished the elements without any question, leaving only the issue raised in the denial.

We focused on the application of the facts in the Matter of Isovic and distinguished our client from this case in one key aspect: the Request for Evidence. Where in Matter of Isovic the petitioner was required to furnish evidence of the temporariness of its beneficiary, our client was never asked in the Request for Evidence. We distinguished our case through the evidence we already provided in the record and how if there was any question on that issue, that it would have been raised in the Request for Evidence.

We pointed out how the officer must have ignored other documents that were submitted in the case. Next, we raised INA §214(b) on the presumption of status and reinforced that there is no presumption of immigrating to the U.S. for a person filing under the L-1A visa, which is a factor in favor of our client’s temporary stay in the U.S.
We then provided our strongest argument by focusing on the Request for Evidence procedure. Citing 8 C.F.R. 103.2(b)(8)(iii) and 8 C.F.R. 103.2(b)(8)(iv), we contended that in furnishing a Request for Evidence, the process of sending a request for evidence was to “specify the type of evidence required, and whether the initial evidence or additional evidence is required.”

If the temporary stay of the beneficiary was truly at issue, the Request for Evidence would have asked for more evidence to establish such temporariness. The case of Shanti, Inc. v. Reno, 36 F.Supp.2d 1151 (D Minn. 1999) stands for the premise that “it may be an abuse of discretion when the INS fails to follow its own regulations, or where an INS decision is inconsistent with the agency's own precedent.” Immigration relies on the Code of Federal Regulations in the determination of all of its procedures. The only logical conclusion in this matter is that it would be an abuse of Immigration discretion to uphold the denial of our client’s L-1A visa by relying on an issue that was never raised in the Request for Evidence.

In the end, the Motion to Reopen/Reconsider was approved and our client was granted his L-1A visa. The turnover time from the time the motion was filed to the final decision was only two weeks. It goes to show that with a little research and a carefully crafted argument, the denial of an L-1A visa can be overturned. When appealing any decision by immigration, attacking the decision on the grounds of an incomplete Request for Evidence is just one way to bring about a favorable decision on an issue that was never made an issue in initial filing of the case.

Any immigration attorney would do well to keep this strategy in mind when mounting an attack on a bad decision. Feel free to email us with any questions.

The Department of State (DOS) has launched the anticipated new version of the Form DS-160 Nonimmigrant Visa Application.

The form's new version clarifies, in no uncertain terms, that the applicant - and no one else - must electronically sign and submit the DS-160 form. As part of a newly formatted opening page, the DS-160 advises applicants to:

"be aware that under U.S. law you must electronically sign and submit your own application unless you qualify for an exception. This means that you (the applicant) must check the 'Sign Application' button, even if someone else helped you fill the application out."

To emphasize the point, the DOS even adds the following language to the above warning:

"If someone else clicks the button instead of you, your application may not be accepted."

This same warning is repeated several times throughout the DS-160 and the associated Confirmation page.

Other changes on the new form include six new questions relating to possible grounds of inadmissibility.

Senator Robert Menendez (D-NJ), together with six other Democratic Senators, introduced the Comprehensive Immigration Reform Act of 2011. The bill, which would overhaul the country's immigration system, proposes a mandatory employment verification system, a federal commission on immigration, and an earned path to citizenship for those undocumented immigrants already in the United States.

The Senate bill stands in contrast to recent House bills that focus on narrow aspects of immigration reform, such as expansion of E-Verify and tougher immigration enforcement laws. Immigration Reform Bill Introduced in the Senate.

While we remain skeptic that any major reform will happen any time soon, the only positive side is that there is still some support and interest by certain members of Congress to pass reform.

The Work & Travel Program is part of the J-1 visa category of the U.S. government’s Exchange Visitor program.

If you are a university student from outside the United States and are not a U.S. citizen, you may experience life in the U.S. as a temporary employee and tourist by participating in a Work & Travel Program during your four-month college vacation period.

How? Your first step is to obtain a J-1 visa, which is the U.S. government’s exchange visitor visa program designed to promote cross-cultural exchange between the US and other countries. To qualify for this J-1 visa, you must be a full-time university student or be within six months of graduation.

The Summer Work Travel (SWT) program has provided thousands of international college and university students an opportunity to visit the United States and experience the American people and culture firsthand.

In 2010, approximately 120,000 college and university students participated in the Summer Work Travel program.

Given the expanding size of this program, the Department of State has perceived the need to enhance safeguards for participants. The implementation of these safeguards should provide stronger protections and make this a more viable program. New regulations were announced this week.

The new safeguards include:

* ­ A pilot program for six countries (Belarus, Bulgaria, Moldova, Romania, Russia, and Ukraine) aimed at thwarting the potential for abuse of summer work travel participants who come from those countries; and new program-wide regulations designed to strengthen and clarify current program oversight and administration requirements.

* ­ A special e-mail address and a toll-free telephone number, available 24 hours a day/7 days a week, to enable students to have ready, direct contact with the Department about program complaints or issues; and,

* ­ Department of State welcome letters and program brochures provided to each program participant to better inform them about what to expect in the Summer Work Travel program.

* ­ An aggressive and proactive system to monitor sponsors better, including on-going data analysis, complaint tracking, and on-site visits to sponsors to fully assess their compliance and the effectiveness of the new regulations.

* ­ Closer scrutiny to visa applications of potential SWT program participants from the pilot program countries. Consular officers refuse visas to those applicants who don’t demonstrate that they are eligible for visas, including compliance with the pilot program’s conditions.

USCIS open forum, designed to encourage open communication between USCIS representatives and AILA practitioners, was held at AILA (American Immigration Lawyers Association) Annual Conference on June 17, 2011. USCIS Director, Alejandro Mayorkas, was present to answer the questions of immigration practitioners regarding the current issues in USCIS adjudication procedures. Attorney Kate Powel who attended this session, prepared the following points for our readers:

The Open Forum concentrated on the issues of aliens with extraordinary abilities category and the Kazarian guidance, VIBE program and its deficiencies, the increased number of standard RFEs, and other problem areas.

During the open forum, AILA members pronounced their concerns regarding the unpredictability in adjudications and stricter adjudication standards, especially as applied to small businesses, that are contributing to an environment that is discouraging foreign companies from coming here.

KAZARIAN GUIDANCE AND EB-1 ADJUDICATION

AILA representative raised the concerns of many AILA members regarding the so-called Kazarian guidance issued by the agency. On January 14, 2011, USCIS released a Policy Memorandum providing internal guidance for the adjudication of immigrant visa petitions based upon extraordinary ability in the sciences, arts, education, business, or athletics and for outstanding professors or researchers. This Policy Memorandum, known as the “Kazarian” memo adopts the two-part adjudicative approach to evaluating evidence set forth by the Ninth Circuit in Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010).

AILA asserted that the guidance in the Kazarian policy memo is insufficient and falls short of the goal of providing examiners with sufficient analytical tools to properly weigh and evaluate evidence in support of EB-1-1, EB-1-2, and EB-2 “exceptional ability” petitions. Neither the Kazarian decision, nor the policy memo, clearly articulates how the final merits determination should be made. Cases cited favorably by Kazarian fill that gap. For example, in Buletini, the court first analyzed whether the plaintiff met three of the ten criteria enumerated in 8 C.F.R. §204.5(h)(3). Having determined that the plaintiff did provide sufficient evidence of three of the ten enumerated criteria, the court stated:

Once it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. §204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien, despite having satisfied the criteria, does not meet the extraordinary ability standard.

As noted by AILA, prior to the issuance of the final version of the memo, USCIS added language to the Final Memo that requires officer’s to not merely make general assertions, but rather officers must articulate the specific reasons as to why the USCIS officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the individual possess the required high level of expertise for the immigrant classification they are seeking. The burden of proof, however, continues to rest with the petitioner to establish eligibility.

The absence of a discussion of the cases that provide the foundation for this analytical framework is the shortcoming to the Kazarian memo that undermines its effectiveness. AILA members have reported increased number of denials based on the second prong of the test. As reported, the adjudicators found various reasons to deny cases even though the three criteria were met based on the second prong of the test. AILA recommended that USCIS revise the Kazarian memorandum to include a discussion of underlying case law to provide examiners with a clear understanding, and clear examples, of the way to analyze the “second prong” of the “two-prong” test.

Director Mayorkas stated that USCIS believes that the two-part adjudicative approach to evaluating evidence described in the “Kazarian” memo simplifies the adjudicative process by eliminating piecemeal consideration of the required high level of expertise for the immigrant classification and shifts the analysis of overall high level of expertise to the end of the adjudicative process when a determination on the entire petition is made (the final merits determination). The Director emphasized that the evidence in its totality must then establish eligibility for the required high level of expertise for the immigrant classifications.

AILA members tried to urge Director Mayorkas to interpret the language of Kazarian as shifting the burden from the petitioner to the Service to prove that the alien does not qualify for the category sought. Director Mayorkas, however, did not give a clear response on whether the agency will actually consider this suggestion.

REQUEST FOR EVIDENCE (RFE) TEMPLATES AND THE ADJUDICATORS’ FAILURE TO IDENTIFY SPECIFIC ISSUES TO BE ADDRESSED IN THE RFE RESPONSES

USCIS open forum also raised the concerns of many AILA members regarding standard RFE templates that do not clearly explain why the specific information is being requested. Often times, the RFEs prompt the petitioners to submit the information that has already been provided in the case. The RFEs use general templates that fail to address the specifics of a case and, as a result, the petitioner cannot understand the problem and the deficiency in the originally submitted file. A lot of times, the Service sends a standard RFE, several pages long, asking for the same information that has already been submitted. Moreover, the RFEs fail to explain why the information is being requested. The petitioners or their attorney representatives are left wondering what is requested in the specific RFE. Lack of clarity in the RFEs often leads to case denials. The denial notices often describe concerns of the adjudicators that were not even raised in the RFEs. Due to the risk of a denial if responses to RFEs are not provided, petitioners have to engage in very costly and time-consuming efforts to locate all the documents requested even though they might not be required for the determination because the agency, in fact, had some other concerns in mind when issuing the RFE which the agency did not clearly articulate.

AILA asserted these concerns and asked Director Mayorkas to address them. Director Mayorkas assured the members that the Service is in the process of reevaluating guidance in respect to the RFEs. Director agreed that the current RFE procedures are not effective, confusing, and have to be changed. The following question, however, remains unanswered - When will USCIS update the RFE procedures and provide sufficient guidance to the adjudicating officers? The Service has not yet come to conclusion on

1) whether to prepare better templates for RFEs or
2) whether to train the officers to identify in the RFEs what the record contains, identify why the record is deficient, and provide examples of documents that the petitioner could submit to cure the deficiency.
It seems unlikely, however, that newer RFE templates will cure the RFE problems. It seems like no matter how advanced the templates are, if there is nothing specific about the particular case, the petitioner will not understand the problem causing the deficiency.

Director Mayorkas agreed that guidance is needed quickly in this area to avoid unnecessary denials but stated that the Service has to provide consistent and uniform policy which may take time to develop.

PROBLEMS INVOLVING SMALL PETITIONING COMPANIES

Another concern pronounced by AILA members was in respect to increasing number of RFEs and denials for H-1B cases involving small petitioning companies. Director Mayorkas stated that with small employers, the Service is more suspicious that the petitioner might not be a legitimate business. Director acknowledged that the adjudicators are not sufficiently educated on how the specific industry works and there is no policy guidance on the issue. Director noted that the agency is currently working on bringing the industry specialists as consultants into the agency training procedures to help the agency understand the petitioning businesses in a variety of industries.

VIBE PROGRAM AND THE INCREASING NUMBER OF RFES

AILA members also raised their concerns regarding VIBE program and the increased number of RFEs referencing VIBE issues. VIBE uses commercially available data from an independent information provider, currently Dun and Bradstreet (D&B), to validate basic information about companies or organizations petitioning to employ alien workers.

AILA members communicated to Director Mayorkas that VIBE program is not effective, leads to increased number of RFEs, and that D&B has repeatedly asked the petitioning companies to pay a fee for updating the employer’s information with D&B.
Director Mayorkas acknowledged that he is worried about the consequences of VIBE program. Director revealed his uncertainty as to whether the program would generate RFEs temporarily or permanently and agreed that it might not be an appropriate program.

Even though Director Mayorkas tried to address the concerns of AILA members, the specific guidance and clarifications are yet to come out. We will be monitoring the developments and will provide updates on the issues referenced above once the official guidance from the agency comes out.

In line with what we heard at the National Immigration Law Conference Last week, John Morton, the head of Immigration and Customs Enforcement, said the deportation program would continue to expand as planned in order to be operating nationwide by 2013, despite criticism from many police chiefs and from the governors of Illinois, New York and Massachusetts, who sought to withdraw their states.

In a fix likely to have broad practical effect, Mr. Morton issued a memorandum that greatly expanded the factors immigration authorities can take into account in deciding to defer or cancel deportations. Agents are now formally urged to consider how long an illegal immigrant has been in the United States, or whether the immigrant was brought here illegally as a child and is studying in high school or college.

Under Secure Communities, tens of thousands of immigrants who were here illegally but had not been convicted of any crime were detained by local law enforcement and swept into deportation proceedings. Until now, once immigration agents in the field had started a deportation, government lawyers had little authority to decide which cases were worth pursuing in immigration court. Many immigration violations are civil, not criminal, offenses.

In the Secure Communities program, fingerprints of everyone who is booked into jail are checked against F.B.I. criminal databases, as has long been routine, and also against Department of Homeland Security databases, which record immigration violations.

Read More...

It was a mostly sunny day here in San Diego as the AILA conference entered its second Day. Lots of meetings with government officials and several open forums. I will provide a few points from the DOL open forum head by Bill Carlson, Dept. of Labor, Foreign Labor Certification.

This open forum included a summary by the DOL regarding immigration-related filings. The key points of the DOL summary are explained here for the benefit of our readers.

The DOL started the 2011 fiscal year with speedy adjudications of PERM cases, currently they are working on April 2011 cases. As for Audited cases, the current processing time is September 2010. Finally, cases pending Appeal are currently at February 2008. The DOL was able to reduce its previous backlog by almost half, and the goal is to become even more efficient by 2012.

The DOL reports a %63 increase in PERM filings since 2010, an impressive number by itself. This is a sign that employers feel more confident as the job market slowly rebounds. At the same time Mr. Carlson reported a %30 increase in Audits and this number is expected to increase as well. %25 increase in Appeals filed this past year and finally a %40 increase in cases under review.

An interesting update from Mr. Carlson indicates that %25 of the PERM cases filed in the past year were non STEM science, technology, engineering, or math (STEM) cases, this means that they were cases that either do not require a degree or a degree with no or little experience.

Also reporting 800-1000 cases being subject to supervised recruitment, %70 of those cases resulted in denials. The increased audits and supervised recruitment is consistent with our experience at our law firm.

The ICERT portal is getting better and most of the problems have been resolved. There are 11,000 icert employers and the website reports 26 Million daily visitors. Not bad for DOL!!

Currently there are less than %12.5 LCA denials in the system as opposed to almost %65 last year. The main 2 reasons for denials these days: 1. FEIN non ability to verify. 2. Issues with the prevailing wage. It is not taking 48 Hours to verify FEIN's and obtain most LCA certifications.

Lawyers were hoping to receive more answers from the DOL representatives on PERM issues with recruitment, reasons for denials and inconsistency in adjudications. We didn't get as much as we expected. Hope to report more updates as the conference continues.

This year the American Immigration Lawyers Association National conference is being held in San Diego. Just a few blocks from our down town office, you can see thousands of Immigration lawyers gather to socialize, learn and advance our profession.

This morning, ICE head John Morton, opened with an discussion about ICE's activity and future plans. ICE released new IDENT statistics that show immigrants with low level offenses account for a large number of those caught in the dragnet created by Secure Communities.

Of 477,035 matches, 71, 197 have been identified as level 1 offenders, while 405,838 were identified as level 2 and level 3, between October 2008 and February 2011.

Meanwhile, of the 405,838 level 2 and level 3 matches, 52,603 individuals were identified as non-criminals booked into ICE custody, while 24,884 level 2 offenders and 49,019 level 3 offenders were booked.

According to ICE, “deployment continues to be the primary driver for increased identifications.”
Secure Communities, which relies on police in local jails to enter prints of those they arrest into a joint FBI and ICE database, is currently active in 1,123 jurisdictions in 40 states. ICE plans to enroll 488 more jurisdictions by the end of FY 2011 with a goal of total deployment in 2013.

When former AILA president offered Morton the Support Secure Communities badge, he kindly declined:))

He also stated that his own mother is still a Green Card holder after many years living in the US. He was also born outside of the US.

Keeping you posted tomorrow...

Today Senate and House champions of refugees introduced the "Refugee Protection Act of 2011. More than thirty years ago, Congress passed the Refugee Act, a landmark law intended to codify the United States' obligations under the 1951 U.N. Refugee Convention. Over the years, the country has fallen short of fulfilling those obligations. Advocates Congress to act swiftly and in a bipartisan manner to pass this bill which is so vital to refugees and asylees--and to our nation's identity.

Among other fixes, the Refugee Protection Act would eliminate the requirement that asylum seekers file their claims within one year of arriving in the United States. The rule, which has only a few, narrow exceptions, has led to untold numbers of worthy refugees being denied asylum as well as administrative waste.

The new Refugee Protection Act of 2011 includes provisions that would:

* Eliminate the one-year asylum filing deadline that bars refugees with well-founded fears of persecution from asylum;
* Limit unnecessary and prolonged detention of asylum seekers by creating a secure alternatives to detention program, with individualized case management and additional safeguards, and require regulations establishing detention conditions that provide a “safe and humane“ environment;
* Allow asylum seekers and immigrants in detention to access legal information through group presentations, pro se workshops, and pro bono coordination so that detained respondents before the immigration court are aware of their rights and responsibilities, leading to reduced court times;
* Authorize the appointment of counsel in limited circumstances such as for unaccompanied children and individuals with mental impairments;
* Ensure refugees are not deported back to persecution while they prepare their petitions for federal court review;
* Clarify the “particular social group” basis and “nexus” requirements for asylum so that the asylum requests of vulnerable individuals, including women fleeing gender-based persecution, are adjudicated fairly and consistently;
* Protect refugees who are being mislabeled as “terrorists” from inappropriate exclusion by refining the definitions of “terrorist activity,” so that U.S. immigration laws better target actual terrorists;
* Authorize the bi-partisan United States Commission on International Religious Freedom to conduct a study regarding the conduct of the expedited removal process; and
* Protect victims of persecution and torture in maritime interdiction by directing the Department of Homeland Security to promulgate transparent, non-discriminatory, and written standards, such as requiring translators and other steps to protect individuals from being returned to persecution or torture.

Read More...

The Biggest Immigration Conference in the US is taking place in San Diego June 15- June 18. Our lawyers will be attending sessions on recent Immigration law developments so we can better serve our clients with the most up to date information in the field.

The American Immigration Lawyers Association (AILA) will host a three hour pro bono session for area residents in need of legal advice regarding immigration concerns on Wednesday evening beginning at 5:00 p.m. More than 60 immigration attorneys will be available to answer questions and assess each participant's situation. The clinic will be held at the Thomas Jefferson School of Law and cases will be handled on a first come first served basis.

The pro bono immigration clinic is being hosted in conjunction with the AILA Annual Conference that is being held this week at the Manchester Grand Hyatt. "This is our small way of thanking the city of San Diego for welcoming AILA for our Annual Conference which will include nearly 3,000 immigration practitioners. We are excited to be able to give back to the community and hope to be able to serve at least 150 individuals," said AILA Executive Director Crystal Williams.

Volunteer attorneys will give a brief presentation about the immigration process and then meet one-on-one with participants to answer questions, make initial assessments, and recommend a course of action which could include follow up with a local immigration attorney on a pro-bono or low-bono basis. All interested individuals are encouraged to attend this event which is being promoted widely by community groups and local law associations.

The event is open to the press.

AILA Pro-Bono Immigration Clinic
5:00-8:00 p.m.
Thomas Jefferson School of Law
1155 Island Avenue, San Diego, CA 92101

Languages: Afrikaans, American Sign Language, Burmese, Chinese (Mandarin), French, German, Hindi, Hindu, Italian, Korean, Portugese, Russian, Spanish, Tagalog, Tamil, Telugu, Urdu, and others

We will be there as well, come and meet me and Kate Powell, Esq.

The Department of State has released the new visa bulletin for July 2011 on June 9, 2011 which continues to bring cheers to Chinese and Indian nationals whose Priority Dates get benefited.

For the month of July 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward nearly five months for Chinese nationals (from October 15, 2006 to March 8, 2007), and also moved forward nearly five months for Indian nationals (from October 15, 2006 to March 8, 2007). In the EB-3 category, the cut-off dates moved forward from May 15, 2004 to July 1, 2004 for Chinese nationals and moved forward from April 22, 2002 to May 1, 2002 for Indian nationals.

For the month of June 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward more than two months for Chinese nationals (from August 1, 2006 to October 15, 2006), and moved forward more than three months for Indian nationals (from July 1, 2006 to October 15, 2006). In the EB-3 category, the cut-off dates moved forward from April 15, 2004 to May 15, 2004 for Chinese nationals and moved forward from April 15, 2002 to April 22, 2002 for Indian nationals.

We will keep you updated on the recent developments on the Employment base Visa Bulletin.

USCIS released the latest H-1B visa information on June 6, 2011. As of June 1, 2011, USCIS reported that 13,600 cap petitions had been filed and 9,300 spots for U.S. advanced degree holders have been filled.

On May 26, 2011, USCIS reported that 13,100 cap petitions had been filed and 9,000 spots for U.S. advanced degree holders have been filled. In Summary, from May 26 to June 1, about 500 cap petitions and 300 petitions for U.S. advanced degree holders have been filed.

We will be happy to assist you in your H-1B filing needs.

The Immigration Law field is one of the most abused areas of law by scam artists, trying to pray on innocent Immigrants. We see such victims all the time.

Immigration officials are teaming up with federal and state prosecutors, the Federal Trade Commission, lawyers’ groups and immigrant advocate organizations in a new nationwide effort to combat an epidemic of schemes by people posing as immigration lawyers.

The campaign, which will begin in Washington soon, is an effort by the Obama administration to step up one form of assistance to immigrant communities, which have intensified their criticism of President Obama as they have faced a record pace of deportations in the last two years.

Officials say this is the first time a crackdown on fake immigration lawyers has been coordinated broadly among federal and state agencies and local immigrant aid organizations. Federal appeals courts in New York, California and other regions with major immigrant populations have been deluged with cases of immigrants who sought legal status through the courts, but ended up in labyrinths leading to deportation because of incompetent or fraudulent lawyers.

A more common and persistent problem involves notarios, a Spanish word referring to a type of accountant. Although notarios can perform legal functions in many Latin American countries, they have no authority to act as lawyers in the United States. Also, sometimes tax accountants in immigrant communities will offer immigration services they are not qualified to provide.

“Oftentimes, no documents have been filed for the immigrants, or they have been filed wrong and kicked back,” said Reid Trautz, director of the practice and professionalism center of the American Immigration Lawyers Association. “It is a very good thing that a coalition of agencies is coordinating to take this on,” Mr. Trautz said.

He said the lawyers association would hold clinics to assist immigrant victims of fraudulent lawyers, and would provide training in immigration law for legitimate lawyers in other fields. We welcome this effort and hope to see more crackdown on those criminals.

Read more..

Critical update to all of you H1B job changers. Under the H-1B portability provisions, an applicant for H-1B status may begin working for the sponsoring employer immediately upon the filing of the Form I-129 Petition for Alien Worker, provided that the applicant is a "nonimmigrant" and "was previously issued a visa or otherwise provided nonimmigrant status [under the H-1B regulations]." The latter phrase has been subject to varying interpretations within the legal community. The situation arises when a foreign national enters the U.S. in H-1B status, subsequently changes his or her status to another status, and then again seeks H-1B status at a later date. In the past, some attorneys have argued that the H-1B portability provisions should allow a foreign national in this situation to begin employment with the petitioning employer upon the filing of the H-1B petition.

U.S. Citizenship and Immigration Services (USCIS) has recently intimated that it will construe the H-1B portability provisions to apply only to those non-immigrants holding H-1B status at the time of filing the subsequent H-1B petition. This development stems from the return of tentative and final non-confirmations from the E-Verify system related to those foreign nationals who are currently in a non-immigrant status other than H-1B and who have filed an H-1B petition utilizing the portability provision.

In response to the reports of erroneous non-confirmations from the E-Verify system, AILA's Verification Committee addressed E-Verify officials on this issue. AILA was informed that the non-confirmations issued in the situation of foreign nationals filing H-1B petitions while in a valid, non-immigrant status other than H-1B are final, and have been issued based on internal guidance from the USCIS Chief Counsel's office. This guidance has not been released to the public and USCIS does not believe that this is a new interpretation of the H-1B portability provisions. USCIS is said to be working on AC21 regulations to clarify this issue.

At a recent meeting with U.S. Customs and Border Protection (“CBP”) and AILA reps the following questions came up:

The regulations at 8 C.F.R. § 214.2(e)(19)(i) state that E visa holders may be admitted for an initial period of not more than two (2) years. It has been our understanding that E visa holders with valid E visas and passports valid for more than 2 years should be admitted for two years upon each entry, regardless of the expiration of validity of the visa. However, some CBP officers are admitting E visa holders only until the expiration of validity of their E visas.
•
Please confirm that, assuming no other adverse factors, E visa holders should be admitted for two years on every admission, and not be limited to the length of their visas.
•
Please confirm that, absent a specific reason to question the ongoing validity of E status, no additional documentation should be required to be presented, other than the visa and passport.

The CBP responded:

CBP concurs that the appropriate period of admission for E-1 and E-2 visa holders is 2 years on each entry. This is consistent with established CBP policy and with the Inspectors’ Field Manual. Officers in the field should be processing E visa holders accordingly. While overall CBP statistics do not reflect that this is a systemic problem, CBP acknowledges that there are instances of error. When those arise, they should be addressed locally, but CBP invites the liaison committee to bring to HQ’s attention specific officers or Ports of Entry (POE) that are having consistent problems in this area.

CBP notes that passport validity may impact the period of admissibility of an E visa holder. However, when a visa is scanned by CBP, the class of entry and the period of entry are calculated automatically. An officer needs to override the default period of admission in order to admit the traveler for a shorter period.

If a traveler feels that the I-94 period of admission was short, then it is best to raise the issue at the POE. CBP is willing to issue a muster if the issue is so widespread that a muster is indicated, but the agency prefers that travelers first address this issue locally with supervisors and managers. If specific officers or POEs present a consistent problem, then HQ wants to know so that they can determine whether the issue is one of training or compliance.

E visa travelers should typically not have to present any documents other than the passport with a valid visa. In some instances CBP may request additional information, usually for purposes of fraud interdiction or to compare the traveler’s information to information available to CBP from other sources. This is an exceptional circumstance.

CBP also noted that the issue of shortened E visa admission is more likely to occur at some land ports that do not see many E visas than at airports and other busy POEs. We will keep you posted with any new updates.

An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of inadmissibility. Waivers must establish that a qualifying relative will suffer "extreme hardship" if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that "the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien," whereas a waiver for criminal history (INA 212(h)) requires it to be established "that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien." A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)]. For the purposes of this memo the Application for Waiver of Grounds of Inadmissibility will be referred to as an I-601.

USCIS 5/9/11 policy memo on how USCIS processes requests to expedite the adjudication of Forms I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside of the U.S. The receipt notice template, Appendix 41-5, is attached following the memo.

It has been USCIS’s longstanding policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application. Consistent with this policy, an applicant may request that the adjudication of a Form I-601 be expedited. Requests to expedite in the Form I-601 adjudication context present unique challenges.

Almost all Form I-601 applicants outside the United States have an interest in expeditious processing given that most are required to establish extreme hardship to a qualifying family member in order for USCIS to consider whether to exercise its discretion to waive the bar to an applicant’s entry into the United States. However, some applicants may be experiencing extraordinary circumstances that present the kind of compelling and urgent, time-sensitive reasons that merit expedited processing of a Form I-601. This memorandum provides guidelines on responding to requests to expedite Forms I-601 filed by applicants overseas.

See memo below

Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. As of now, USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217.

Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district (San Diego, California) is intending to deny such applications.

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397 (AILA Doc. No. 10122752). 5 In the brief, the Solicitor General acknowledged at page 9:

In general, VWP aliens are excepted from eligibility to seek adjustment of status, but those who qualify as immediate relatives fall within an exception to the exception. See 8 U.S.C. 1255(c)(4). Immediate relatives therefore are subject to the general rule that DHS may grant adjustment of status, “in [its] discretion and under such regulations as [it] may prescribe.” 8 U.S.C. 1255(a).

But nothing in that general rule, or in Section 1255(c)(4), provides that VWP aliens who are immediate relatives must be able to seek adjustment of status in removal proceedings. To the contrary, as the court of appeals explained, VWP aliens have waived any opportunity to use adjustment of status, or any ground except an application for asylum, to challenge removal. Pet. App. 15a (citing Bayo, 593 F.3d. at 507). (Emphasis added).

In this brief, the Department of Justice confirms that USCIS may continue its longstanding policy of adjudicating applications to adjust status for immediate relatives who have entered and overstayed a VWP admission, and those applications may be approved in its discretion.

Notably, the opinions of the Solicitor General, when made to the United States Supreme Court, are the position of the United States. In his brief to the Supreme Court, the Solicitor General synthesized the rules of law from the different courts of appeal decisions such as Bradley v. Attorney General, __ F.3d __, 2010 WL 1610597 (CA3 April 22, 2010); McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010); Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

Central to several of the cases is that the aliens in each were attempting to interpose adjustment of status as a defense to removal. The courts found that they waived the right to do so by gaining admission under the VWP. While we are aware that courts in McCarthy, Momeni, and Bayo state that VWP aliens who overstay their 90-day periods of admission are ineligible to adjust, those pronouncements were outside the scope of issues before those courts.

Moreover, courts in McCarthy, Momeni, and Ferry, state that VWP aliens only forego the right to contest removal through adjustment, not the right to adjustment through proceedings before USCIS, even when filing for adjustment after the expiration of the 90- day period. In McCarthy, the court says: “The Sixth, Eighth, and Tenth Circuits have also concluded that aliens who file for an adjustment of status after the expiration of the ninety-day period waive their right to contest a subsequent removal order.” (Italics added.)

The Ninth Circuit in Momeni holds: “An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum).” (Italics added.) Similarly, the Ferry court says: “It is evident under the applicable statutes and regulations that a VWP alien who overstays his authorized time and is ordered removed has waived his right to contest that removal through an application for adjustment of status.” (Italics added.) Each is silent as to eligibility to adjust administratively before the USCIS. That is as it should be.

AILA requests that USCIS immediately provide 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 the Form I-485 adjustment application after the expiration of the VWP alien’s period of admission.

As it stands today, the agency agrees that I-485s under these circumstances should be adjudicated unless the potential beneficiary is the subject of an INA section 217 removal order. An update to the AFM is being prepared, and guidance will be issued to the field. We will keep you posted.

The recent increases in Requests for Evidence resulting from the Validation Instrument for Business Enterprises system, prompted USCIS to issue the following notice.

Due to the time-sensitive nature of agricultural work, U.S. Citizenship and Immigration Services (USCIS) expedites all H-2A “temporary or seasonal agricultural worker” petitions. However, some recent H-2A petitions have experienced unexpected delays due to Requests for Evidence (RFEs) resulting from the use of the Validation Instrument for Business Enterprises (VIBE). As delays in adjudication are especially burdensome for H-2A petitioners, we are providing an H-2A Optional Checklist as well as a Questions & Answers document to help petitioners ensure that their petitions are expeditiously processed. Additionally, USCIS will hold a public engagement in the near future to provide USCIS and H-2A employers, associations and agents the opportunity to discuss best filing practices. Until such time, USCIS is temporarily suspending the use of VIBE in the H-2A Program. Use of VIBE will resume after 45 days of the date of this USCIS Update on July 18, 2011.

USCIS is taking measures to carefully review all pending H-2A petitions filed prior to this clarification notice.

Continue reading "H2A Visa - Questions & Answers in Light of USCIS's Implementation of VIBE" »

Generally, all individuals born in the United States and subject to its jurisdiction of the United States are citizens (e.g., children of diplomatic officials, etc.). Still, other individuals born outside the United States may claim United States citizenship derivatively from a parent who at the time of the individual's birth was a United States citizen. The legal requirements for Derviative Citizenship are extremely complex.

In order for an individual to apply to become a naturalized U.S. citizen (USC), s/he must be age 18 or older. Thus, in the typical situation of a family living in the United States as lawful permanent residents, the minor children will not be eligible to file for naturalization with their parents. In many cases, these minor children do not need to request U.S. citizenship. Rather, it is automatically conferred when either parent naturalizes, if certain requirements are satisfied.

The laws regarding the derivative acquisition of U.S. citizenship by minor children were broadened by the Child Citizenship Act of 2000 (CCA). This law became effective February 27, 2001, and remains effective as of this writing. Under current law, children under 18 automatically acquire U.S. citizenship if three requirements are met.

*

The child must have U.S. lawful permanent resident status ("green card" holder).
*

At least one parent must be a U.S. citizen by birth or naturalization.
*

The child must be residing in the United States in the legal and physical custody of a USC parent.

In this situation, once all three requirements are met, U.S. citizenship is automatically conferred upon the child/ren by operation of law without the need to file a specific application requesting U.S. citizenship. These provisions apply to one's adopted child/ren as well as biological children.

Children who met these requirements on that day and after automatically became US Citizens. However, if you were older than 18 on this date then you have to meet different requirements in order to get derivative citizenship.

Caution, these laws do not apply retroactively. Any lawful permanent resident, who turned 18 prior to February 27, 2001, generally required both parents to naturalize prior to her/his 18th birthday, in order to acquire U.S. citizenship automatically