Visa Lawyer Blog

An anxious and worried couple consulted with me recently. The spouse is American and the Husband Filipino who we will call Mr. M.

They presented me with a decision from the local Immigration office intending to deny their Marriage Adjustment Petition. They were given 30 days to file an appeal. The issue in this case was that the immigration officer determined that there was fraud in this case, and hence Mr. M doesn’t qualify for the conditional Green Card. The couple explained that the officer never looked at any of their documents. Rather, she interviewed them separately and determined her conclusions based on the answers they provided.

After reviewing the decision, it was clear that the officer never even looked at the numerous documents the couple collected together. She also ignored the medical condition that the US Citizen spouse was under. The wife suffered from a serious heart condition that affected her memory ability to communicate clearly.

We immediately got on top of the case. In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493. Evidence to be considered by the reviewer officer includes evidence of combined financial assets and liabilities, length of time of cohabitation, and other relevant evidence. Chand v. INS, 1997 U.S. LEXIS 19141

Continue reading "San Diego Immigration Attorney - Winning a Marriage Adjustment Denial" »

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Posted In: Family Visas

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A few days ago USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 1, 2008, 17,305 petitions have been counted towards the 33,000 cap for the first half of fy 2009. For the lawyers filing H2B visas and employers needing them badly, these are bad news.

I expect all H2B visas for the first half of the year (starting October 1) to be gone by mid August, if not earlier. Those that have filed their Labor Certifications already, make sure to work with the local SWA's and Department of Labor to make sure smooth processing of your files. Also, make sure to have your I-129 packages ready, so that with the LC's are approved you will be first to file.

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Posted In: Work Visas

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Due to the large number of visa refusals (mostly non immigrant) in many Consulates around the world, we can not stress to clients to be honest about past visa refusals.

For more than 25 years, consular officers have been noting visa refusals by stamping the back of an applicant's passport with "application received." Modern technology makes this step no longer necessary. The refusals are being tracked by the DOS, DHS and other federal agencies, just in a more modern manner than the ink stamp in a passport.

When filing for a nonimmigrant visa application, Form DS-156 of the DOS asks in question 31 whether the visa applicant has ever been refused a visa. If the answer is yes, it is important to provide information as to when, where, and the type of visa that was denied or refused. Not providing accurate or truthful information could result in further refusal based on fraud or material misrepresentation. Potentially, such findings could permanently prevent an individual from obtaining a visa and entering the United States. Even though certain waivers are allowed, obtaining an approval of a waiver for a nonimmigrant or immigrant visa is discretionary and not routine. So be honest and you will be in a better position.

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Posted In: Updates

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I am a big fan of the 80's music and was pleased to learn of Boy George's upcoming Concert Tour, passing through San Diego as well in July. Now it seems that we will be be expecting a refund for the tickets.Boy George has been denied a visa to enter the United States, according to his site.

U.S. immigration denied the visa because George, faces trial in November in London on charges of false imprisonment relating to an April 2007 incident, according to a statement from Boy George's management, posted on his site. Under US law a criminal conviction even from abroad, can lead to a visa denial or bar to enter the US.

Read the story here

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This week I am attending the National American Immigration Lawyers Association Conference in Vancouver,BC. The setting is perfect as 11,000 immigration lawyers gather to discuss the most pressing issues in immigration law today.

I attended the open forum where by Government Officials from Immigration and Department of Labor share views and answer questions from the lawyers. Gov Officials said that the U.S. Department of State Visa Bulletin for July 2008 stated that all employment-based, third preference (EB3) visa numbers will be used by the end of June 2008. There are several causes of this development according to the panel experts today, including joint efforts by DOS and the USCIS to utilize all available visa numbers by the end of fiscal year (FY) 2008.

One important change that appears to be contributing to the usage of visa numbers is the February 2008 Michael Aytes (he was there today acting very cheerful and willing to answer many questions) memorandum allowing for approval of Application for Adjustment of Status (I-485) cases awaiting clearance through the Federal Bureau of Investigation (FBI)'s National Name Check Program (NNCP).

The USCIS has approved enough EB3 cases to reach its annual limit for all countries. As a result, no EB3 Adjustment of Status applications may be approved until fiscal year FY2009, which begins October 1, 2008. I will keep you posted as we get more updates during the conference.

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Posted In: Updates

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I-140 Premium processing is back, but wait not so fast. The USCIS issued an official notice informing that, as of June 16, 2008, premium processing will be available for I-140 petitions on a limited basis. The premium processing service for I-140s will only be available for foreign nationals who are reaching the end of their sixth year of H1B term and who otherwise would not be eligible for H1B extensions.

I-140 premium processing will be made available to those who need their I-140s approved in order to be eligible for H1B status beyond the six-year limit. This would apply to H1B applicants who have only 60 days remaining before the end of the H1B six-year limit, but who do not qualify for extensions based upon the priority date of the labor certification filings, alone. In that instance, the I-140 approval will permit an H1B extension for an additional three years in those situations where the priority date is not current / available.

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Per the USCIS announcement on June 5, 2008, USCIS is centralizing the processing of N-400’s at NBC, with one exception. Military naturalization applicants will continue to file with the Nebraska Service Center until further notice.

Movement of N-400 applications from the service centers to the National Benefits Center
(NBC) for centralized staging and subsequent processing will occur in an incremental
fashion. The Texas Service Center (TSC) will move forms from its office to the NBC
during the month of June. This movement will not involve all N-400 applications
received at the TSC, however. The TSC will only move those cases received and
accepted at their site after June 6th. Only those cases received after this date and found to
be correctly filed according to USCIS standards will be transferred to the NBC.

The California Service Center will follow suit during the month of July by transferring
only those cases meeting the above stated criteria after the specific date in July yet to be
determined and communicated. The Nebraska Service Center will be transferring its
cases received in August, in like fashion. The Vermont Service Center will conclude this
transition phase with the movement of its cases to the NBC within the month of
September. Only those cases receipted after the specific date set in September will be
moved from the VSC to the NBC.

Continue reading "San Diego Citizenship Lawyer - N400 Processing update" »

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Posted In: Citizenship

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Our country's commitment to bring to justice criminals against humanity is remarkable. The pursuit of Holocaust criminals shows that even after 60 years, they will face justice and be deported.

The Board of Immigration Appeals (BIA) affirmed an order directing the removal of
Josias Kumpf, 83, due to his participation in Nazi-sponsored crimes of persecution during World War II.

The BIA adopted and affirmed the January 2007 decision of Chicago-based immigration judge Jennie L. Giambastiani, who ordered Kumpf’s removal to Germany, or, in the alternative, to Austria or Serbia. The original order was based on Kumpf’s admitted wartime service as an armed SS Death’s Head guard at the Sachsenhausen Camp; at slave labor sites in Nazi-occupied France where prisoners built launching platforms for Germany's V-1 and V-2 missile attacks on England; and at the SS forced labor camp for Jews in Trawniki, Poland.

During the investigation of his activities, Kumpf admitted that he participated in a
November 1943 Nazi operation that bore the code-name "Aktion Erntefest" ("Operation Harvest Festival"), in which approximately 42,000 Jewish men, women and children were murdered at three camps in eastern Poland in only two days. Kumpf stood guard as approximately 8,000 Jewish prisoners – including approximately 400 children – were shot and killed in pits at Trawniki. According to Kumpf, his assignment was to watch for victims who were still "halfway alive" or "convulsing." If any of the prisoners attempted to escape, he stated, his job was to "shoot them to kill."

The U.S. District Court for the Eastern District of Wisconsin revoked his citizenship in May 2005.

Reads the press release here

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The Supreme Court’s decision in Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16,
2008), addresses the interplay between the voluntary departure provision, INA § 240B,
and the motion to reopen provision, INA § 240(c)(7).

The INA permits a person to file a motion to reopen within 90 days of the final administrative order of removal. However, individuals with voluntary departure usually must depart within 30 or 60 days or risk being ineligible for suspension of deportation, adjustment of status, change of status, registry, and voluntary departure for ten years. Additionally, after a person departs, the
government deems a motion to reopen withdrawn. Because the government generally
does not adjudicate motions to reopen before the voluntary departure period expires,
individuals granted voluntary departure who then become eligible for relief following the
final order may have no means to pursue this relief.

Read the summary from AILF Download file

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Posted In: San Diego Immigration Law

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The American Immigration Lawyers Association reports that USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on may 24, 2008. So if you have not been issued a receipt by May 24th, your case must have not been selected.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as "protective filings" due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

Those not selected must be planning for H1B visa alternatives.

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Posted In: Work Visas

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The EB-5 program allocates 10,000 visas per year for aliens and family members whose qualifying investments result in the creation or preservation of at least ten (10) full-time jobs for U.S. workers. 3,000 of these immigrant visas are set-aside for aliens who invest in designated regional centers, areas of high unemployment or other qualifying rural areas.

The EB-5 visa category started in 1991. Regional Centers started in 1993. The program was due to expire this year. The House of Representatives passed HR 5569, a bill extending the EB-5 Regional Center program for another five years.

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Following the recent announcement of the audit of all PERM cases filed by Fragomen, largest immigration law firm in the nation. A new set of rules was issued by DOL on the role of Lawyers following the PERM process.

The Department has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer’s normal consideration process. In most situations, that normal process does not involve a role for an attorney or agent (as defined in 20 C.F.R. 656.3) in assessing the ability of applicants to fill the employer's needs.

More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:

Lawyers may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function.

Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.

Read the Summary here Download file

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