Visa Lawyer Blog

Important notice to our clients from Eritrea. Consular operations, including visa services, at the U.S. Embassy in Eritrea have been suspended until further notice. According to Embassy Asmara, the closure is in response to the Government of Eritrea's flagrant violations of the Vienna Convention on Diplomatic Relations. These violations include failing to notify U.S. consular staff of the arrest of American citizens, hindering the travel of Embassy officials to visit American citizens in distress, and interfering with the delivery of the U.S. Embassy's diplomatic pouches. The Consular Section will continue to provide emergency services to U.S. citizens.

Information courtesy of the Rome District Chapter (RDC) of AILA.

Here are some important changes to the K visa process, effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions: The nonimmigrant K visa will be administratively closed.

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality. If your marriage took place in a country that does not have an American embassy, or the embassy does not issue visas, the NVC will send your petition to the embassy or consulate that normally processes visas for citizens of that country. For example, if your marriage took place in Iran where the U.S. does not have an embassy your petition would be sent to Turkey.

Can you guess how many illegal immigrants reside in the US at this time? DHS released a report estimating that the unauthorized immigrant population living in the U.S. decreased to 10.8 million in January 2009 and grew by 27 percent between 2000 and 2009.

Between 2000 and 2009, the unauthorized population grew by 27 percent. Of all unauthorized immigrants living in the United States in 2009, 63 percent entered before 2000, and 62 percent were from Mexico. The number of unauthorized residents declined by 1.0 million between 2007 and 2009, coincident with the U.S. economic downturn. The overall annual average increase in the unauthorized population during the 2000-2009 period was 250,000.

In 2009, 61 percent of unauthorized immigrants were ages 25 to 44 years, and 58 percent were male (see Figure 3 and Table 5). Males accounted for 62 percent of the unauthorized population in the 18 to 34 age group in 2009 while females accounted for 52 percent of the 45 and older age groups.

Read the complete report here Download file

A client found out the hard way about aggressive debt collectors making harassing phone calls and using abusive language. They would call sometimes three or four times a day. The client bought a fridge on credit and stopped paying when she lost her job. Collection agents said she owed $4,500 and threatened to seize her furniture and car and "send immigration to the house." They contacted her neighbors and boss about her debt, all in violation of the law.

Attorney Sergei Lemberg, a recognized expert on Fair Debt Collection Practices has written an excellent article on this issue and we are featuring this article below. For more information click here: Fair Debt Collection Practices Act

In today’s economy, it’s all too easy to get behind in paying your bills. For many people, simply juggling living expenses involves racking up more debt. To make matters worse, people with the best of intentions get crushed under the burden of mountains of debt, and then are subjected to calls, letters, and harassment by bill collectors. In these stressful times, it’s more important than ever to understand bill collectors and your rights.

Who are bill collectors? Well, there are two primary types of debt collectors. The first consist of those who are from the original creditor. So, for example, if you get behind in your Visa bill, chances are good that you’ll hear from collectors who are employed by the bank that issued your Visa card. This is your original creditor.

The second type of bill collectors are third-party debt collection agencies. These are companies that are either hired by your original creditor, or who have purchased old debt that’s been written off as a loss by your original creditor. When debt collection agencies are hired by a creditor, they typically work on commission. In other words, they get a percentage of the amount the collect. This is powerful incentive to put the squeeze on consumers for every dime they can get. When an agency buys up debt, they usually pay pennies on the dollar and actually own the debt. So, almost everything they collect is pure profit – another powerful incentive.

When a third party agency comes calling, you’re protected from harassment and other illegal practices by the Fair Debt Collection Practices Act. The FDCPA outlines a whole range of illegal behaviors and lines that debt collection agencies can’t cross. Aside from that, the FDCPA says that, if you ask for it, the bill collector must provide proof that you owe the money he’s asking for. This is extremely important for a couple of reasons.

First, debt collectors are notorious for trying to collect money that can’t be legally collected. Say, for example, that you have a bill that’s seven or ten years old. Chances are, the statute of limitations has run out and that bill is no longer collectible under the law.

Second, requesting the validation of a debt can buy you some time. The process of gathering the documentation and sending it to you can give you the breathing room you need to come up with a plan. The law says that debt collectors can’t continue to call you until they’ve established that the debt is truly yours to pay.

Knowing whom you’re dealing with and what options you have are important first steps in dealing with debt collection harassment.

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2010 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is still in recovery mode, and employers are careful before hiring. Yet, many Immigration experts feel the Cap will be met early this year, but when is the big question.

With drastic changes to the Labor Condition Application process (now taking more than 7 days to process), as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.

In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers.

The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.

This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.

Requirements in the Statute

The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available

There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings

LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals

U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.

The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.

H-1B employees with a Master’s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations

The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees

Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits

Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program

Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations

For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria

Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.

Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!

Recently USCIS issued a fact sheet on humanitarian parole that includes questions and answers and guidelines on filing.

U.S. Citizenship and Immigration Services (USCIS) provides a number of humanitarian programs and types of protection for individuals in need of shelter and/or aid from disasters, oppression, emergency medical issues and other urgent conditions. Humanitarian parole is one such program.

Humanitarian parole enables an otherwise inadmissible individual to enter the U.S. temporarily
due to a compelling emergency. USCIS may grant humanitarian parole based on urgent,
compelling reasons, or to promote a significant public benefit. This parole does not confer any
permanent immigration status, but does enable a recipient to apply for and receive employment
authorization.

Humanitarian parole is typically granted for the duration of the emergency or compelling situation at issue. Anyone granted humanitarian parole must depart the U.S. prior to its expiration date or risk negative immigration consequences. It is possible, however, to request while in the U.S., a reparoleof a previously accorded humanitarian parole period.

Anyone can file an application for humanitarian parole, including the prospective parolee, a
sponsoring relative, an attorney, or any other interested individual or organization. Requests for
humanitarian parole may only be accepted for individuals who are outside the U.S.; unless such
request pertains to a re-parole of a prior humanitarian parole granted at USCIS headquarters in
Washington, D.C.

Read the complete FAQ here

The Department of Homeland Security now offer Haitian nationals, who were already here when the earthquake struck, Temporary Protected Status (TPS) for 18 months. That status, which would allow them to legally work, will not cover Haitians who leave their country following the devastating quake that resulted in as many as 150,000 deaths. Many Haitians flee the country, thinking they will be accepted in the US at any time and given a right to stay and work. TPS is not a right to enter, rather a relief for those illegals that are already here.

What is TPS?

Congress established a provision for short-term protection known as Temporary Protected Status (TPS). The provision sets forth criteria for the extension of temporary protection to people from certain countries experiencing political or environmental upheaval. For decades, during periods of civil strife, economic upheaval, or natural disaster, the Attorney General--in consultation with other agencies--exercised his or her discretion not to force nationals of countries experiencing these calamities to leave the United States. Individuals who were in the country illegally could present themselves and receive work authorization; those in proceedings had their cases put on hold; while those who already had orders of removal were not returned until the situation had stabilized. The relief was extra-statutory and was called "extended voluntary departure."

It was a pure form of prosecutorial discretion exercised on the part of the authorities.
In later years, the exercise of this prosecutorial discretion was given the designation of "deferred enforced departure." TPS is the latest version of the statutory form of relief. Recent grants of TPS status have been to Liberians during specified periods of the civil war in that country; to nationals of El Salvador following a severe earthquake in 2001; and to nationals of Somalia as a result of its civil war.

There are three bases for TPS under the statute:

(1) existence of an ongoing armed conflict within a particular country that poses a threat to the personal safety of the general population;

(2) a flood, drought, epidemic, earthquake, or other natural disaster that causes a substantial temporary disruption in the living conditions in the country;

3) an extraordinary and temporary condition in a country that prevents its nationals from being able to return safely. In order to qualify for TPS, a person must be physically present in the United States on the date of the designation and meet the requirements set forth in announcements issued by DHS.

One logic behind this move is that Haitian immigrants already in the U.S. will not only be able to make money to support themselves, but also to send money/goods to their suffering families back in Haiti. And they sure do need the help.

The tragedy in Haiti continues, all the Aid in the world will not change the devastation. The US Government through some temporary immigration measures is trying to do its share. Secretary Janet Napolitano, in coordination with the U.S. Department of State, today announced a humanitarian parole policy allowing orphaned children from Haiti to enter the United States temporarily on an individual basis to ensure that they receive the care they need—as part of the U.S. government’s ongoing support of international recovery efforts after last week’s earthquake.

Humanitarian parole into the United States may be granted by the Secretary of Homeland Security to bring otherwise inadmissible individuals into the country on account of urgent humanitarian reasons or other emergencies. The humanitarian parole policy announced by Secretary Napolitano today will be applied on a case-by-case basis to the following children:

Children who have been legally confirmed as orphans eligible for intercountry adoption by the Government of Haiti and are being adopted by U.S. citizens.

Children who have been previously identified by an adoption service provider or facilitator as eligible for intercountry adoption and have been matched to U.S. citizen prospective adoptive parents.

Under applicable laws, unaccompanied minors entering the country without a parent or legal guardian are subject to special procedures regarding their custody and care. DHS coordinates with the Department of Health and Human Services (HHS) Office of Refugee Resettlement on the cases of these unaccompanied minors.

Today’s announcement expands the humanitarian relief that the U.S. Government is extending to Haitians in response to the devastation caused by the earthquake.

Read more here

Rescue workers struggled to clear rubble and bodies Wednesday from the streets of Haiti's "flattened" capital, where a government official said the death toll from Tuesday's 7.0-magnitude earthquake may exceed 100,000. Thousands of injured people waited for care outside badly damaged hospitals, while an unknown number remained trapped inside collapsed buildings.

Our thoughts are with the families and relatives searching for loved ones, some of our clients are from Haiti and we know how difficult it must be to not know about the faith of loved ones.

In the US, the DHS issued the following statement:

Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement Assistant Secretary John Morton today halted all removals to Haiti for the time being in response to the devastation caused by yesterday’s earthquake. ICE continues to closely monitor the situation.”

We will keep you updated.

There has been a lot of confusion about the impact of the HIV removal on previous waiver denials and other related issues. USCIS released a good set of FAQ to address some concerns.

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), bars the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. The Department of Health and Human Services (HHS), on Nov. 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule takes effect on Jan 4, 2010. As of Jan. 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States.

Here are the most common questions asked:

Q. My application was denied prior to Sept. 15, 2009, due to failure to file a waiver for HIV infection. Can I file a motion to reopen or reconsider because a waiver is no longer needed?
A. In general, a motion to reopen or reconsider must be filed within 30 days of the final adjudication. However, if your application was denied solely based on HIV infection, on or after July 2, 2009, the date of the proposed HHS rule, USCIS will waive the 30 day deadline. USCIS will accept the filing of your motion to reopen or reconsider along with the filing fee.

Q. My application for adjustment of status was denied prior to July 2, 2009, due solely to HIV infection. What should I do?
A. You may reapply for adjustment of status, if eligible, once the new rule takes effect on Jan. 4, 2010. USCIS will make a new decision in light of the final HHS rule.

So this is a bright light in the lives of many HIV positive immigrants, facing the possibility of removal. We hope to report more on the above referenced changes.

Click here for the complete FAQ.

What a great way to start the year. Today is an historic day in US Immigration law. The US has lifted a 22-year immigration ban which has stopped anyone with HIV/Aids from entering the country. President Obama said the ban was not compatible with US plans to be a leader in the fight against the disease.

The new rules come into force today and the US plans to host a bi-annual global HIV/Aids summit for the first time in 2012. The ban was imposed at the height of a global panic about the disease at the end of the 1980s. It put the US in a group of just 12 countries, also including Libya and Saudi Arabia, that excluded anyone suffering from HIV/Aids.

Rachel Tiven, head of the campaign group Immigration Equality, told the BBC that the step was long overdue.

"The 2012 World Aids Conference, due to be held in the United States, was in jeopardy as a result of the restrictions. It's now likely to go ahead as planned," she said.

Read more..

Talk about the perfect student dream, getting a diploma - but never attending classes. And if you get a free visa with this, even better. A Southern California pastor has been accused by immigration authorities of helping foreigners fraudulently obtain student visas and handing out phony diplomas at a fake graduation ceremony on a campus where they never attended class.

Samuel Chai Cho Oh, 65, surrendered to authorities Tuesday and faces a charge of conspiracy to commit visa fraud for allegedly charging foreigners cash to help get them student visas on the premise they would attend the Christian university he owns in Fullerton.

But more than 100 students from countries including South Korea, Thailand and Japan never took classes at California Union University, which served as a shell for them to stay in the country legally, Immigration and Customs Enforcement officials said.

"He found a way to circumvent the system," said Joseph Macias, assistant special agent in charge for ICE's office of investigations in Orange County. "His greed and his financial gain won (out) over the visa program."

Immigration authorities say Oh charged students between $600 and $10,000 over the last decade to file paperwork on their behalf to certify they had been accepted to the university and would be attending class in order to obtain valid student visas.

Authorities said Oh raked in between $40,000 and $50,000 a month from the alleged scheme and acknowledged that 75 percent of the 300 students enrolled at the university did not regularly attend class.

Macias said authorities seized two bank accounts belonging to Oh that combined held more than $400,000.

Read more here...

Stories like this one explain the increase in Mexican nationals fleeing to the US. As drug gangs clashed across Tijuana this week, a San Diego mother of two lost her life in the crossfire. Yajaira Orozco was shot in the head when assailants sprayed gunfire inside a seafood restaurant where she was sharing a meal with her husband.

ajaira Orozco, also 23, was one of about 50 people who have died in the past week in Tijuana, many of them as a result of a brutal battle for control between two rival drug-trafficking groups.

But while Yajaira Orozco was a U.S. citizen, Raul Orozco, her spouse, was brought to the United States from Mexico at age 5 and was not a legal resident. In order to apply for legal residency, he first had to move back to Mexico. There are may families in similar situations. Where one of the family members entered the US illegally, and upon marriage to US Citizen are trying to fix their papers. Under current law, the illegal immigrant must leave the US in order to complete the legalization process. Read a client's story here. While the drug war in Mexico continues, such families are risking their lives every day.

Read more....

DOS issued a list of questions and answers on the removal of HIV infection from the CDC list of communicable diseases of public health significance. Issues addressed include the background of the rule change, visa application process, HIV-positive applicants who have previously been refused a visa, and information dissemination about the rule.

One of the main questions for the public is, before the effective date of January 4, 2010, what changes will take place for non-U.S. itizens with HIV infection who wish to enter the United States?

Until the final rule goes into effect on January 4, 2010, non-U.S. citizens who have HIV cannot be admitted to the United States without waivers granted by the Department of Homeland Security (DHS). Certain nonimmigrants may qualify for issuance of visas from consular officers without first applying to DHS for waivers under a streamlined process established by DHS in its HIV Waiver Final Rule.

Effective January 4, 2010, visa applicants required to receive medical examinations will not be tested for HIV, and HIV-positive visa applicants will not be found ineligible for visas under Section 212(a)(1)(A)(i) of the INA and will not need waivers from the Department of Homeland Security (DHS) prior to being issued visas, if otherwise qualified.

Read the Memo here Download file

Great story from the ABA Journal about this not so covered visa option for victims of crime.

This is the story of Sud.

Sud was trapped—literally and figuratively. Hers was an arranged marriage. She had immigrated to the United States after her marriage in 2005 on an H4 visa. The visa made her ineligible to work, unable to get a Social Securi­ty number and completely dependent on her abusive husband.

Sud thought she had little choice but to endure the domestic violence if she wanted to stay in the United States. But she learned that she was eligible for a little-known visa available to otherwise undocumented immigrant crime victims called a U visa. The visa blocks the deportation of people like Sud if they cooperate with law enforcement.

But the wheels of justice turn very slowly in the United States, Sud learned. Although the law creating the visa was passed in 2000, the implementing regulations were not published until 2007, and applications were piling up, further delaying the process. According to the U.S. Citizenship and Immigra­tion Services, some 14,000 U visa applications were pending before it as of last December. A spokeswoman for the agency attributed the delay to the complicated nature of the process. “A lot of different issues had to be resolved,” she said.

Read more..

AILA provided a very important update from the State Department, we wish to share with our readers.

The Department of State has issued comprehensive new policy guidance on the use of DNA testing in the visa application process. This new guidance is set forth in a new set of extensive Notes to 9 FAM 42.44.

In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method for proving a biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.

According to the Department, DNA testing is expensive, complex and time consuming and thus should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as a last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer.

Consular officers may recommend DNA testing solely to prove a relationship; they may never recommend DNA testing in an attempt to disprove a relationship. Only DNA test results reporting a 99.5 percent or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.

The Department clarifies that consular officers adjudicating Form I-130 Alien Relative petitions are not authorized to approve the petition if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not "clearly approvable" per the provisions of 9 FAM 42.41 N4.2-3; accordingly, they must be forwarded to USCIS for adjudication. Parenthetically, USCIS is authorized to approve I-130 petitions supported solely on DNA testing.

Continue reading "I-130 Alien Relative petitions - Comprehensive New Policy on DNA Testing" »

Most applicants that are married less than 2 years to a US citizen must file form I-751 to remove the conditions. The Immigration Marriage Fraud Amendments of 1986 (IMFA) contained a requirement to file a Petition for Removal of Condition during the 90-day period preceding the second anniversary of the noncitizen’s acquisition of resident status.

The petition is to be filed jointly by the U.S. citizen or lawful permanent resident spouse and the conditional resident (CR). IMFA also allowed for a waiver of the joint-filing requirement based on specified grounds if the joint petition could not be filed. The IMFA was modified in 1990 (IMMACT90), and broadened the grounds for filing a waiver of the joint-filing requirement.

Currently a conditional resident can obtain a waiver of the joint-filing requirement and can show that he or she qualifies on one of three distinct bases: (1) extreme hardship to the CR if removed; (2) a good-faith marriage that has been terminated (by means of divorce); or (3) a good-faith marriage during which the CR or child suffered battery or extreme cruelty at the hands of the spouse. The CR files the waiver on Form I-751.

1. Extreme Hardship Waiver:

Under the Immigration and Nationality Act (INA), a conditional resident who can show that extreme hardship would result if such alien is removed, is eligible to have the joint-filing requirement waived and the conditional basis of resident status removed. The extreme hardship can be to the CR, a dependent child, or a subsequent spouse. The marriage that gave rise to the conditional resident status may have been terminated or not. Subsequent remarriage is not a bar to the hardship waiver. Currently areas of concern and controversy regarding the provision include the definition of “extreme hardship,” the period of time in which the hardship must have arisen, and whether the applicant must evidence a good-faith marriage.

There are at least 10 criteria relevant to determining whether a deportation will cause extreme hardship. These include (1) the alien’s age; (2) family ties in the United States and abroad; (3) length of residence in the United States; (4) health conditions; (5) economic and political conditions in the alien’s home country; (6) occupation and work skills; (7) immigration history; (8) position in the community; (9) whether the alien is of special assistance to the United States or to the community; and (10) whether there are alternative means to adjust status. Lawyers are well advised to use and evidence all factors that will give rise to hardship, including seemingly minor ones, as these can be viewed in the aggregate.

2. Waiver for Good-Faith Marriage that has been terminated:

The Immigration and Nationality Act allows for a conditional resident who can show that the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of joint-filing, is eligible to have the joint-filing requirement waived and the conditional basis of resident status removed.

There is no controversy that this good-faith marriage waiver requires a showing that the conditional resident entered into the marriage in good faith. The job for the lawyer is to determine what documents will evidence this requirement and how to present certain documentation. Furthermore, the INA makes clear that any credible evidence relevant to the application must be considered. The burden evidencing the good faith however, lies squarely with the applicant. Consequently, it is imperative that your lawyer bring forth the necessary evidence to substantiate a good-faith marriage.

Since, this good-faith marriage waiver basis requires that the qualifying marriage be terminated, it places many conditional residents in a difficult situation if their divorce has not become final prior to the deadline to file.

3. Waiver for Good-Faith Marriage – Battery/Extreme Cruelty (Abuse):

As with the waiver based on a good-faith marriage that has been terminated,
the battery (abuse) waiver basis clearly requires that the conditional resident show evidence of a good-faith marriage to quality for the waiver. In addition, extreme cruelty must be documented by providing for the use of any credible evidence in support of the waiver. This often includes evidence from a licensed clinical social worker, psychologist, or professional.

Although the INA does not provide much guidance as to what constitutes battery or extreme cruelty, regulations do state that, “was battered by or was the subject of extreme cruelty includes, but is not limited to, being the victim of any act or threatened act of violence.” Lawyers can also show that less egregious acts also may suffice to meet the required showing for battery and extreme cruelty. Evidence of physical abuse may include, but is not limited to, expert testimony in the form of reports and affidavits from; police, judges, medical personnel, school officials, and social service agency personnel.

In conclusion, even though the law provides for waivers of the joint-filing requirement for conditional residents, each waiver basis presents legal and standard-of-proof requirements that may be difficult to evidence. Early planning and the assistance of a qualified immigration lawyer is the best way to success. Lawyers who arm themselves with the knowledge and expertise, can overcome the obstacles that lead to successful prosecution of I-751 joint-filing waivers.

US is finally joining the Civilized world as Obama lifts the 22 year long HIV ban on infected visitors coming to our country. Visitors who have HIV would be allowed to travel and immigrate to the United States.

The president signed the Ryan White HIV/AIDS Treatment Extension Act of 2009 at the White House Friday and also spoke of the new rules, which have been under development more more than a year.

The regulations are the final procedural step in ending the ban, and will be published Monday in the Federal Register, to be followed by the standard 60-day waiting period prior to implementation.

A ban on travel and immigration to the U.S. by individuals with HIV, the virus that causes AIDS, was first established by the Reagan-era U.S. Public Health Service and then given further support when Sen. Jesse Helms (R-N.C.) added HIV to the travel-exclusion list in a move that was ultimately passed unanimously by the Senate in 1987.

The president had the following to say:

A couple of years ago Michelle and I were in Africa and we tried to combat the stigma when we were in Kenya by taking a public HIV/AIDS test. And I'm proud to announce today we're about to take another step towards ending that stigma.

Twenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS. Now, we talk about reducing the stigma of this disease -- yet we've treated a visitor living with it as a threat. We lead the world when it comes to helping stem the AIDS pandemic -- yet we are one of only a dozen countries that still bar people from HIV from entering our own country.If we want to be the global leader in combating HIV/AIDS, we need to act like it.

We welcome this decision and hope that in country HIV waiver will be now in a much better position to be approved even for applicants without qualifying relatives.

Read more here

The November 2009 Bulletin brings mixed news. The State Department's Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference "certain religious workers" category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. All individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

This Bulletin brings excellent advancement in the family immigration categories, especially in the Family 1st and Family 2A categories and, for Mexico, in the Family 3rd category, what a relief. Mexico advances to 1 May 1992. The Philippines advances one month to 22 October 1991.

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USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. This was confusing to many applicants in the past as they were not sure what to type in this section.

In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. Again, this is something that was not so clear in the previous version of the form. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found in the form's instructions.

Please note that USCIS will continue to accept the previous version of the form, dated 10/30/08 Y, through November 20,2009. Beginning November 21, 2009 USCIS will only accept the revised Form I-601, dated 04/06/09 N, and will reject all requests using previous editions of the form. Concern is that Applicants using notarios and other consultants, may be rejected as these non lawyers may not be informed of the new procedures.