Visa Lawyer Blog

On January 6, USCIS posted a notice outlining its plan to reduce the time that certain families are separated when the foreign national goes home to apply for an immigrant visa. The current process allows applicants to file for a waiver only after they have their initial interview at the U.S. Consulate, usually in their home country. Under the proposed process, the applicant may file the waiver application with USCIS while they are still in the U.S. The provisional waiver will be available only to applicants with U.S. citizen spouses or parents, but not to applicants whose qualifying relatives are permanent residents.

Although the new process will change the filing procedure for some, all applicants are still required to prove that the qualifying relative will suffer extreme hardships if they are not re-admitted to the U.S.

The following post will explain a few of the misconceptions about the new proposals and address a few of the questions clients have been asking.

Key Points to Remember

- Goal of changes is to reduce time that immediate relative waiver applicants are separated from their U.S. citizen family members.

‐ The only ground of inadmissibility that the waiver process will cover is unlawful
presence – the 3‐10 year bar.

‐ Those that are inadmissible for other reasons, e.g. criminal grounds, will not be eligible for this process.

‐ The standards for the waiver remain unchanged.

What happens when the provisional waiver is denied? What will the policy be on issuance of a Notice to Appear? What if the person has no criminal record or history of fraud?

USCIS Answer:

According to USCIS, no answer yet – just a request for public comment on what the policy should be.

Will there be sufficient coordination or “synergy” between USCIS and the Department of State? What about consular officers denying cases, even when a provisional waiver has been granted?

USCIS Answer:

‐ USCIS is coordinating closely with the State Department – collaboration has been terrific.

‐ Provisional waiver covers only unlawful presence. We will not be adjudicating other grounds of inadmissibility. Other grounds of inadmissibility may arise during the consular interview, and these grounds will need to be addressed by the consular officer. The interview may yield information that the USCIS adjudicator cannot determine from the application.

‐ USCIS will work to ensure that the guidance that goes out to the State Department is as clear as possible.

**** Side comment, I feel that many Consular Officers will applying harsher approaches to waiver applicants coming to seek visas, even after the waiver approval in the US. This remains to be seen.

What will happen to provisional waiver applicants who unknowingly have other grounds of inadmissibility?

USCIS Answer:

‐ The waiver will be denied.

If clients have interviews right now, can they possibly get the interview rescheduled so they can benefit from the new regulation at the end of the year?

USCIS Answer:

‐ Goal is to implement program within calendar year, but USCIS cannot provide legal advice.

What will the process be for submitting the waiver – will the applicant submit it along with the I‐130, or after the I‐130 is adjudicated?

USCIS Answer:

‐ Process for how to apply and timing will be spelled out as the rule takes shape.
‐ Also, do not submit a request for a provisional waiver until the new regulation is
implemented.

What if a U.S. citizen over the age of 21 petitions for their parent – and then that beneficiary parent has U.S. citizen parents who would suffer extreme hardship were the beneficiary denied an immigrant visa? Would the beneficiary parent be eligible for a provisional waiver?

USCIS Answer:

‐ Yes. Waiver will apply to those who are classified as immediate relatives by virtue of the I‐130. A U.S. citizen spouse or parent must be the qualifying relative for extreme hardship.

What about legal permanent residents?

USCIS Answer:

‐ The Notice of Intent states that the provisional waiver process only applies to USC immediate relatives.

Would the provisional waiver apply to those who have entered without inspection (EWI) and have Temporary Protected Status (TPS)? Is it possible for these things to be waived like they are for VAWA applicants?

USCIS Answer:

‐ This waiver process applies to approved immediate relative petition beneficiaries who are not eligible to adjust in the U.S. and will trigger the 3‐10 unlawful presence bar if they leave to attend the visa interview.

‐ Individuals do not accrue unlawful presence in certain immigration statuses ‐ like people in TPS status – but if they accrued unlawful presence prior to being in TPS status and they are an approved immediate relative, then they could be eligible for the provisional waiver.

‐ The Notice of Intent states that it does not cover people who are in proceedings.

Is there a possibility that work authorization be granted to applicants while their provisional waivers are being adjudicated?

USCIS Answer:

‐ This is not included in the Notice of Intent – we are just focusing on the waiver process.

What percentage of waivers are filed in Mexico?

USCIS Answer:
‐ 75% of waivers are filed in Ciudad Juarez.

Is it possible that these changes will not go into effect – especially if there is a change in administration?

USCIS Answer:

‐ Our goal is to implement the process this calendar year.

We hope, given that the underlying basis of the waiver is to show extreme hardship, it would be great if DOS and USCIS could work together to expedite the process.

USCIS Response: USCIS recognizes that the period of separation causes extreme hardship – reducing this separation is the objective of the new process. USCIS and DOS are working hard to improve efficiency – new process will shave off the time it takes to transfer the file between agencies (DOS to USCIS).The applicant will still have to leave the US for visa processing, but the 6 months to 1 year that they would otherwise need to wait for adjudication of the waiver for unlawful presence will now take place while the family is still together.

Regardless of whether the new process takes effect (we hope and pray it will), waiver applicants must still show that their qualifying relatives would suffer extreme hardships if they were not re-admitted to the U.S. The Service has no plans to lower this strict standard. This means that visa applicants must still consult with experienced immigration counsel to enhance the likelihood of obtaining the waiver.

Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. We report some good news for many Visa Waiver Overstay clients that are married to US Citizens.

The American Immigration Lawyers Association presented the following question to the Service:

Members continue to report inconsistencies in the treatment of these cases. AILA requests that USCIS remind the field that immediate relatives admitted on a visa waiver are eligible to adjust and to release that guidance to the public, so that AILA members and stakeholders in general can address issues that may arise in field offices that are not adjudicating applications in a manner that is consistent with the guidance.

The USCIS Representative had this to say:

All field offices have been instructed to adjudicate I-485 applications filed by immediate relatives who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order.

Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for applicants who have been ordered removed under INA section 217. USCIS is in the process of drafting final guidance including an AFM update on this topic.

So there you have it, unless you are subject to a removal order, you can Adjust your status, even after a Visa Waiver overstay. We have been filing Appeals, talking to the Media and lobbying to make it happen. I am so pleased this unjust policy coming from the San Diego Office as well as other locations is now going to come to an end. Please share your stories with us if your district is still denying such cases.

Here we go again. A federal grand jury has indicted a former Sacramento immigration consultant and 13 other individuals alleging they participated in an elaborate immigration fraud scheme in which foreign nationals from Eastern Europe and Russia paid to enter into sham marriages with locally recruited U.S. citizens.

For foreign nationals, marriage to an American citizen is one means of obtaining lawful permanent residency in the United States. To initiate that process, aliens who are outside the country must apply for a fiancé visa, which enables them to travel to the United States to marry the citizen spouse. Alternatively, foreign nationals who are already in the United States and entered the country legally, may wed here and apply for lawful permanent residence based upon the marriage.

According to court documents, the scheme involved foreign nationals from Eastern Europe and Russia who paid fees of up to five figures to enter into sham marriages with U.S. citizens. U.S. Attorney Benjamin B. Wagner announced the unsealing of the multi-count indictment charging former immigration consultant Sergey Potepalov, 55, of Citrus Heights, Calif., and the other defendants with conspiring to commit marriage fraud, defrauding the United States, making false statements, and inducing aliens to enter and remain in the United States.

This case is the product of an ongoing long-term investigation spearheaded by U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI), with substantial assistance from U.S. Citizenship and Immigration Services and the Department of State's Diplomatic Security Service. Assistant U.S. Attorney Daniel S. McConkie is prosecuting the case.

The maximum penalty for the first three conspiracies alleged in the indictment is up to five years in prison. The latter conspiracy carries a maximum penalty of up to 10 years in prison. Unfortunately, Immigration fraud is on the rise as more and more people are trying to immigrate to the US. At the same time criminals are using the desire to immigrate to the US to make lots of money. We command the government for busting this ring and hope this will teach a lesson for those attempting to profit from fraud marriage schemes.

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.” In order to conclude the process the couple must go through an interview before a USCIS official, establish that the case is bona fide, before obtaining a Green Card.

Many clients are hesitant to take an attorney with them, and are often confused as to whether one can even have an attorney present at the interview. Some officers make it difficult on lawyers and clients who are represented. A recent AILA meeting with the USCIS clarified a few points.

The following questions were raised by American Immigration Lawyers representatives: We have received reports that some field offices restrict the involvement of the attorney during the interview process. The USCIS Milwaukee Field Office has stated that it follows AFM §15.8, which explains that the attorney’s role at the interview is limited to advising his or her clients on points of law, and that the attorney may not respond to questions the interviewing officer has asked the applicant. The office has stated that after the interview, the attorney may follow-up with any concerns regarding the interview and interview questions, or may submit additional information in response to a Notice of Intent to Deny. While we understand the attorney may not answer any questions on behalf of the applicant, there are often times where it is not only appropriate, but helpful to the examiner for an attorney to help clarify a point of confusion, provide prepared documents on a legal issue, or explain a complicated procedural issue in the applicant’s immigration history that the applicant might not fully understand. What guidance, if any, in addition to the AFM, has been provided to USCIS examiners regarding the role of the attorney in the interview process?

Immigration Response: USCIS has spent a considerable amount of time training the ISOs on interview techniques. This training is provided at the field offices and at the ISO Basic training and includes information on the role of the attorney or representative in the interview. Also, as discussed at the meeting with AILA, AIC, and USCIS in April 2011, we welcome suggested language from AILA to potentially incorporate into any guidance USCIS creates regarding this topic.

Attorney Seating. We have been informed that during interview for immigration benefits, attorneys are sometimes instructed to sit in a corner of the room, behind or otherwise apart from the applicant. Examiners have remarked that this rule is to prevent attorneys from participating in the interview. Such a rule conflicts with the right to representation as provided under 8 CFR §292.5(b). Would Field Operations send clear guidance to the field offices stating that attorneys have a right to attend and represent their clients at interviews for immigration benefits, and should be permitted to sit next to their clients, or make other comparable arrangements if space does not easily permit, that would allow the attorney to properly observe the interview and provide appropriate legal assistance?

Immigration Response: Field Operations provided guidance to its offices regarding seating of attorneys during interviews in May 2010 and again in April 2011.
It is critical that USCIS respect the integrity of the attorney/client relationship. Attorneys and/or accredited representatives should, barring safety or security concerns, be permitted to sit next to their clients during interviews. In terms of safety and security, in directing seating during benefit interviews,

adjudicators should ensure that:

Officers have a full view of everyone in the room,

No one in the room, other than the officer, is seated in view of a government computer/monitor screen, and

Egress is not blocked for any of those present in the interview room. Please understand that some interview rooms are not large enough to accommodate the applicant(s) and attorney all sitting in the same row. In these situations, an attorney may be asked to sit behind his or her client.

If you have retained an attorney, it is your right to have that attorney be present with you at the interview and provide you the best representation at that interview. A competent attorney should know his rights before the USCIS, in addition to knowing the law. USCIS are not always correct, it is our role to advocate for our clients.

Continue reading " Marriage Based Adjustment of Status Attorney - Can I have an Attorney present with me at the interview?" »

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..

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.

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

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

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

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

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

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

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

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

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

San Diego Office Response:

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

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

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

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

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

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

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

The Labor Department just announced protocols for certifying U visa applications, and that the U visa certification process will be handled by the Wage and Hour Division’s regional administrators.

What is a U Visa

The Victims of Trafficking and Violence Protection Act of 2000 created two new nonimmigrant visas for noncitizen victims of crimes, the T visa and the U visa. Both visas are designed to provide immigration status to noncitizens who are assisting or are willing to assist authorities investigating crimes.

The U visa is designed for noncitizen crime victims who (1) have suffered substantial physical or mental abuse from criminal activity; (2) have information regarding the criminal activity; (3) assist government officials in the investigation or prosecution of such criminal activity; and (4) the criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.

The U visa certification process has been delegated to the Wage and Hour Division’s regional administrators located in five cities around the country. The division will refer the underlying qualifying criminal activity to appropriate law enforcement agencies in accordance with its normal referral procedure. After the division completes a certification, the victim of the qualifying criminal activity must still submit his or her application to U.S. Citizenship and Immigration Services for a determination of whether to approve the application.

The Wage and Hour Division will consider completing U visa certifications based on five qualifying criminal activities – involuntary servitude, peonage, trafficking, obstruction of justice and witness tampering – when it detects them in the process of investigating a violation of an employment law under its jurisdiction, for example, as related to minimum wage and overtime rights.

The Wage and Hour Division is responsible for enforcing federal labor laws pertaining to the minimum wage, overtime pay, recordkeeping, child labor and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contracts.

Click here for Department of Labor U Visa Process and Protocols Question and Answer

Drug convictions and Immigration Laws are very complicated and require careful analysis. The good news is that a person cannot be deported from the U.S. for Possession of Marijuana as long as the amount does not exceed 30 grams. However, a conviction for any other type of marijuana offense other than simple possession of 30 grams or less requires mandatory deportation.

INA § 237(a)(2)(B)(i) provides as follows:

Any alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable.

In addition to making an alien inadmissible, an admission to a controlled substance offense also makes that person ineligible to adjust status (for example, through an immediate relative or spouse). 8 U.S.C. Sec. 1255(a) provides that persons must be “admissible” in order to be eligible to adjust his/her status to lawful permanent residence.

Furthermore, there is no waiver of inadmissibility or other grounds of relief for a person who has admitted to committing a controlled substance offense other than simple possession of 30 grams or less of marijuana.

The important question is, therefore, what constitutes an admission to “committing acts which constitute the essential elements of…a violation relating to a controlled substance”.

We posted below AILA's (formerly the Association of Immigration and Nationality Lawyers) amicus brief arguing Lennon’s 1968 marijuana conviction was not for a crime involving mens rea, and urging the rejection of the decision to deny his adjustment of status.

The argument put forth by Immigration officials at the time to deny his application for permanent residency in the U.S. was on account of having been charged in England with possession of cannabis and obstructing justice. Yet when the case made it to the Court of Appeals, Chief Judge Irving R. Kaufman ruled that the conviction “need not be recognized under U.S. Immigration law” and ordered INS to adjudicate Lennon’s residence case without considering the conviction. In spite of this favorable ruling that would have cleared the path for Lennon to acquire his immigration goal, the INS would not have it; they were set on denying him this privilege. And so it quickly became evident there were ulterior motives for keeping him out of the country.

Many readers were emailing us for an update on the Visa Waiver overstay saga. Here is the latest: Our Lawyer's Association and all fellow attorneys are concerned that 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 here in San Diego continues to deny such cases.

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

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.”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). U.S.C. 1255(a). But nothing in that general rule, or in Section 1255(c)(4),

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.

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.

The American Immigration Lawyers Association 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.

Here is what the US Citizenship and Immigration Services had to say:

All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the U.S. under the Visa Waiver Program (VWP) and overstayed on their merits UNLESS the potential beneficiary is the subject of an INA section 217 removal order.

Additionally, field offices have been instructed to hold in abeyance all VWP adjustment applications for potential beneficiaries who have been ordered removed under INA section 217. We are drafting final guidance including an AFM update on this topic we expect to issue soon.

So bottom line is that ALL office are now required to approve such Visa Waiver overstays, let's hope San Diego will get that message soon.

On August 18, 2010 we were the first to report the new trend coming from some local Immigration offices, mainly San Diego, regarding Visa Waiver overstay Issues. Click here to read the post as well as the Adjustment of Status denial we posted that same week.

We are happy to report that we were able to overturn the Appeal denial of that same case a few weeks ago, making this one of the only visa waivers approvals since this new policy started in July. While this is a small victory for us and our clients, the Visa Waiver overstay denial policy still continues in San Diego at this time.

Due to some of publicity efforts, National Public Radio and KPBS covered this story this morning, click here to listen online.

If you come to the United States with a passport from a European country or Japan, you can stay here for 90 days, and can commonly overstay without a problem.

But not in San Diego anymore. In the last year, a growing number of visitors on what's known as a Visa Waiver here have been asked to leave after 90 days by local immigration authorities.

Lawyer Jacob Sapochnick observes that San Diego seems to be taking this initiative on its own, despite federal directives.

"Maybe they're tired of all the people overstaying, and people illegally coming to the U.S.," said Sapochnick, trying to find a reason for the shift in practices. "Maybe they have decided to take the only initiative, and using that discretion that they have, and deny those cases."

About 150,000 visitors from 34 countries use the Visa Waiver each year. The U.S. Citizenship and Immigration Services (USCIS) did not respond to an interview request.

It seems that the Immigration Service Officers were not willing to talk to the Radio, we would have loved to hear their position as well.

We will keep updating our readers.

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

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

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

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

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

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

Read the Memo here Download file

UPDATE:

Facing GOP objections, Democrats are putting aside the Dream Act. They're short of the 60 votes needed to advance the measure.

Democratic officials say they'll to move the House-passed version after the Senate acts on funding the government and extending tax cuts. Republicans have said they won't agree to consider anything else until those issues are addressed.

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Last night's House passage of DREAM (216-198) brings us closer than we have ever been to victory! This morning we urge our readers to make final calls to all Senators to urge them to vote for cloture on DREAM.

The Senate is scheduled to vote at 11am and will need 60 votes to win.

The House victory has changed the tone on DREAM and gives our Senators a greater sense of urgency that their individual votes will be the deciding ones for a historic victory on immigration. EVERY VOTE counts so make your final calls now.

Last night DREAM triumphed over partisanship and won the votes of 8 House Republicans and many conservative Democrats. To make DREAM possible, the Senate leadership made the unprecedented move of delaying their voting until today.

The momentum is building on DREAM. Make your calls now so we can get this passed.

Continue reading "Senate is scheduled to vote on DREAM Act today - will need 60 votes to win. " »

Here is a quick update from the field. Processing waiver applications is the main work of the USCIS office at the consulate. Naturally, the consulate makes an initial determination of inadmissibility. If the applicant is eligible to submit a waiver, he or she is instructed to phone the Teletech Call Center beginning the following day to schedule a time and date for dropping off the waiver application.

As of early November, applicants who phone the Call Center are receiving appointments in early January, indicating a two-month wait (until recently the consulate was averaging 4-6 week delay). Due to a transition to a new contract, the Call Center is currently unable to provide “on the spot” confirmation of the appointment, but the agents will take down the caller’s information and respond via email or phone when an appointment is available.

On that date, the applicant will be briefly questioned by a consular employee, pay the waiver application fee, and drop off the packet. The waiver application and supporting documents will be passed directly to the USCIS officer, except for medical waivers, which need CDC notice and sign-off by qualifying relative.

In August, the USCIS began using a new computer system that is not as responsive as the former one, and it was taking two weeks from the “drop-off” date to receive a decision on the waiver. That period of time has recently been reduced to approximately three-five business days. Applications are either approved (only those that are “clearly approvable”) or referred to the backlog.

If the application is going to be referred, the applicant has only 84 days – not up until the time of adjudication – to submit additional documentation. The USCIS office in Cd Juarez receives 80 percent of all waivers filed worldwide, and the adjudicators each read between 30-35 applications/day. If a case appears complicated and voluminous, it may be referred, given the short time (an average of 15 minutes) that officers have to review each application. The strong points in the waiver case need to be put forth up front and not buried in the application or supporting documentation.

Waivers where the applicant has an “A” file will typically be referred, since that file will have to be reviewed before making a decision and it takes two to three weeks to receive the file. The USCIS office in Cd. Juarez will hold onto those cases until the A file is obtained where there is evidence of strong hardships.

There are fewer than 4,000 waiver applications in Ciudad Juarez. This number reflects the applications received and referred during a three-month period. There are still unadjudicated applications pending in the offices where they were referred.

Applicants are encouraged to include an index or table of contents listing or briefly explaining the relevance of the supporting documents. This index should reference numbered documents that are separated and designated by corresponding tabs at the bottom or side of the packet.

The first document should be the declaration from the qualifying relative. Feel free to reference supporting documents within the declaration. Legal briefs and memos are usually not read by the USCIS officers in Cd. Juarez, given the interest of time; they are more likely to be read by officers adjudicating referred applications.

Officers working on referred cases are conducting a “de novo” or brand new review. Cases are currently being sent to USCIS offices in Anaheim, CA; El Paso, TX; Miami, FL; Mexico City; and the Vermont Service Center. They are typically sent to these offices between 60-90 days after the supplemental documentation is received or the 84-day deadline has passed. The processing time for referred cases has been holding steady at around 9 to 10 months. While there were approximately 11,000 waiver applications in the backlog at the beginning of the last fiscal year, that backlog has now been reduced to 4,000 applications.

I-212 Waivers

Form I-212 can be submitted with the I-601 waiver application. Since I-212s do not require a showing of extreme hardship to a qualifying relative, and thus carry a lower standard, they are typically approved if the accompanying I-601 is approved. No stand-alone I-212 applications should be filed with the USCIS office in Cd. Juarez, except in fiancé (K-1) cases.

In other cases where the applicant does not have any other ground of inadmissibility except for a prior order of removal, the I-212 should be filed in the United States with the DHS district office that issued the order. For applicants subject to the “permanent bar” under 212(a)(9)(C)(i)(II) due to illegal or attempted illegal reentry after a final order of removal, the applicant can submit an I-212 after remaining abroad for ten years. These should be filed at the USCIS district office that has jurisdiction over the place where the applicant intends to live in the United States.

Those applicants who were denied a visa based on the three- or ten-year bar under 212(a)(9)(B) and were denied a waiver can phone the Call Center to reschedule their interview once they have remained outside the country for three or ten years. These applicants do not need to file any additional forms or waivers.

If the office adjudicating a referred case is approving the waiver, it will send a notice to the applicant as well as a notice to the consulate. Allow up to 90 days for the consulate to schedule the re-interview, although the average processing time now is about two weeks. Beginning on January 10, 2011, the consulate will be able simply to issue the immigrant visa. In some cases the consulate will require updated information, documents, or biometrics.

If the office adjudicating the referred case is denying the waiver, it informs the applicant of the appeal procedures. The applicant has 30 days to submit an appeal, which is filed at the office that adjudicated the waiver. Every appeal is also treated as motion to reconsider by that office. The Administrative Appeals Office is currently taking approximately two years to issue a decision. If no appeal is filed, the case is closed within 60-90 days after the decision is made and the file is shipped to the National Records Center.

In lieu of filing an appeal, the applicant can request to be re-interviewed, re-refused, and submit a new waiver packet. To exercise this option, contact Call Center, which will send a report to the consulate, which will schedule a new appointment within 30-60 days.

The USCIS in Cd. Juarez is currently approving approximately 50 percent of the waiver applications and referring the other half. Of those applications that are referred, those USCIS offices are approving an additional 50 percent, bringing the total approval rate to 75 percent.

Applicants with compelling health-related hardships can ask that their waiver application be expedited. This is also true of active duty military personnel. This hardship can be indicated to the consular officer at the time of the interview, in which case this is passed along to the USCIS. Or the applicant can inform the USCIS office in Cd. Juarez or at one of the referral offices. Be sure to document any medical-based requests for expedited processing.

Below is a summary of the December 2010 Visa Bulletin with respect to employment-based petitions:

* EB-1 remains current across the board.
* EB-2 Line ( World), Mexico and Philippines remain current, EB-2 China moves forward by one (1) week to June 8, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
* EB-3 Line moves forward by one (1) month to February 22, 2005, EB-3 China moves forward by two (2) weeks to December 8, 2003, while EB-3 India remains unchanged at January 22, 2002. EB-3 Mexico moves forward by fourteen (14) months to July 1, 2002 and EB-3 Philippines moves forward by one (1) month to February 22, 2005.
* The “other worker” category moves forward by three (3) weeks to April 22, 2003 for Line and China and Philippines. It remains unchanged at January 22, 2002 for India. Mexico moves forward by fourteen (14) months July 1, 2002.

Note: Mexico is shining with some strong improvements in the employment categories.

* FB1 Line, China, India and Philippines remain unchanged at February 15, 2006. FB1 Mexico moves forward by one (1) week to January 1, 1993.
* FB2A Line, China, India and Philippines move forward by two (2) months to August 1, 2010, while FB2A Mexico remains unchanged at March 1, 2010.
* FB2B Line, China and India remain unchanged at June 1, 2005. FB2B Mexico remains unchanged at June 22, 1992 and FB2B Philippines moves backwards by more than two years to March 1, 2000.

House Speaker Nancy Pelosi wants to push for a vote during the lame-duck session on a bill that would legalize young, undocumented immigrants if they attend college or serve in the military, according to Democratic sources familiar with a leadership conference call Wednesday.

A vote on the bill, known as the DREAM Act, could come as early as next week, the sources said. Pelosi asked Rep. George Miller (D-Calif.) and Rep. Xavier Becerra (D-Calif.) to assess the mood of the caucus, according to one source.

Senate Majority Leader Harry Reid (D-Nev.) had previously announced that he plans to bring up the DREAM Act during the lame duck session. His spokesman said Wednesday that Reid still hopes to call a vote.

Read more...

The move by Democratic leaders to put immigration back on the legislative calendar will win support from Latinos, whose strong turnout numbers in the West last week were credited with helping the party hold on to control of the Senate. Immigration advocates have pressed Democrats to move on the DREAM Act as a “down-payment” on their promise to push for a comprehensive immigration reform bill in the future.

The DREAM Act, which has some bipartisan support, would allow young illegal immigrants who came to the U.S. before age 16, and have been here for at least five years, to earn legal status if they pass background checks, attend college or serve in the military for at least two years.

A version of the measure was first introduced in 2001 and was drafted to address the situation of children and teenage immigrants who were brought to the U.S. illegally by their parents and have only known the U.S. as home. Many have no family or ties to their countries of birth.