Visa Lawyer Blog

Many clients have been calling my office in the past week or so, they have been reporting denials of adjustment of status applications at the San Diego District Office for applicants, that entered under the Visa Waiver program and later overstayed. The overstay took place before marriage to a US Citizen and filing the adjustment of status case.

Is this is a new trend and change in procedures, yes it is! An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:" To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview." The email was not very long but that was the general idea.

But why and why now? Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S.

Here is a summary about the main case that started this mess, as written by James Tyler, Esq.:

On March 31, 2008, the 9th Circuit Court of Appeals issued a problematic case in a Visa Waiver overstay case that may now present difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status. The case is Momeni v. Chertoff (No. 07-55018).

In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, later was taken into custody for having violated the terms of his stay, placed in removal proceedings, and only then filed to adjust his status based on his marriage to the U.S. citizen.

Momeni tried to convince the 9th Circuit that his case was similar to the case of Freeman v. Gonzales in which the foreign national married a U.S. citizen before entering the U.S. on the Visa Waiver Program and who then filed to adjust her status during the 90 day period of her authorized stay. In Freeman, the same 9th Circuit ruled that the “no-contest” provision of the Visa Waiver program was superseded by Freeman’s legitimate opportunity to apply for adjustment of status, since she was eligible to adjust her status the very day she arrived in the U.S. because of her already-existing marriage to a U.S. citizen..

The Court said the cases were very different: “Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married
after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni
from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.” The Court was clearly concerned that it would open a floodgate of applicants if it allowed Momeni to adjust under these circumstances in which he clearly violated the terms of the Visa Waiver Program.

The result, of course, is very problematic for Mr. Momeni but it also may be problematic for others in the future. Precedential opinions from a federal Court of Appeals (especially one like the 9th Circuit that is considered to be generally sympathetic to a wide range of foreign nationals who are trying to remain in the United States) are often followed by other federal Courts of Appeals. Also, the reasoning of a precedential opinion can be used by the government to create formal policy or to issue formal memos or guidance that then controls in other similar future situations.

Up until last week, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, USCIS has been open to approving the adjustment of status application. Now, after the recent email and citing Momeni, USCIS in San Diego and in other cities take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, case will be denied.

What is our solutions to the Visa Waiver applicants that have overstayed and are pending adjustment? Fight each cases preferably before it gets to court. Each USCIS office have wide discretion and if the correct arguments are presented to the officer and supervisor in charge, they may be willing to allow adjustment. I fee that this is unfair, but we have to work with the system.

It was announced today that U.S. Citizenship and Immigration Services (USCIS) will seek an average 10% increase in immigration fees in order to close a projected $200-million deficit for 2010-11. According to USCIS, budget cuts of $160 million were not enough to offset the gap between the agency's projected $2.1 billion in revenue and $2.3 billion in costs.

“Many of the government expenses being underwritten by these fees are unrelated to the services for which fees are being paid. These are matters of public benefit, and should be funded by appropriations, not applicants," said AILA President Bernard Wolfsdorf. "While a 10% fee increase in and of itself may not seem high, this comes only 3 years after a 66% USCIS fee increase. Taken together, these increases bring many fees to excessive levels,” Wolfsdorf continued.

One positive aspect of the proposal is that it would not increase fees for citizenship applications. Those fees were hiked by 70% to $675 in 2007, an increase that immigrant-rights groups blamed for putting citizenship out of reach for many lower-wage immigrants. Most clients and lawyers are not happy at all with this announcement.

Client: Jacob Sapochnick Immigration Law (Centurion5 Ad Agency) from Centurion5 Agency on Vimeo.

Law Offices of Jacob J. Sapochnick from Centurion5 Agency on Vimeo.

Today, the ACLU, the Mexican-American Legal Defense and Education Fund, the National Immigration Law Center, the National Association for the Advancement of Colored People, ACLU of Arizona, National Day Laborer Organizing Network and the Asian Pacific American Legal Center (a member of the Asian American Center for Advancing Justice) filed a federal lawsuit against the state's sheriffs and county attorneys, asking the court to find S.B. 1070 unconstitutional. It violates the 14th Amendment's guarantee of equal protection under the law because it unlawfully invites the racial profiling of Latinos and other people who look or sound "foreign-born."

It also violates the Supremacy Clause of the Constitution by interfering with the federal government's authority to regulate and enforce immigration. Our lawsuit is on behalf of a diverse coalition of Arizona residents and organizations including the Service Employees International Union (SEIU), the Southside Presbyterian Church, the Asian Chamber of Commerce of Arizona, and the Muslim American Society.

Read the complete posting from the ACLU website here...

You might have heard of Twitter, you might even be using it, you might even be an addict (like me).

If you have no idea what Twitter is, it's basically a 'microblogging' service which allows you to push out small bite sized updates (no more than 140 characters). It started out as an SMS based service, but has really moved onto the data platform now with mobile clients improving and data plans becoming more affordable.

Now ICE the USCIS enforcement arm is joining the fun. U.S. Immigration and Customs Enforcement (ICE) is using Twitter and YouTube to engage and educate the public about the agency's enforcement efforts and its mission to keep the homeland safe.With Twitter (www.twitter.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp? url=http://www.twitter.com/wwwICEgov) ) the public is able to follow breaking news from ICE and access useful information from the agency. ICE's YouTube channel (www.youtube.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp?url=http://www.youtube.com/wwwICEgov) ) offers viewers a glimpse into ICE with videos highlighting the agency's national security role, special capabilities, enforcementoperations, public awareness campaigns and ceremonies.

More here...

Update from our local AILA office. This morning Christopher D. Matson was sworn as the new port director for the San Ysidro and Otay Mesa Ports of Entry. Mr. Matson most recently served for the past two years as the Port Director at Miami International Airport Mr. Matson succeeds Interim Port Director David Murphy, who filled the position for the past six weeks while a replacement was found for former Port Director Oscar Preciado.

Mr. Preciado recently assumed the position of liaison to the U.S. Government Services Administration during the port's upcoming $577 million reconstruction project.ÿ For additional information, please see CBP's press release: Here

Here is a recent update from our local AILA office. All USCIS Application Support Centers (ASC’s) now operate Monday - Friday from 8 a.m. to 4 p.m. For our district that includes the Chula Vista, San Marcos, and Imperial ASCs.

Previously, the ACS’s accommodated special situations like requests for earlier biometric capture or accommodating people who missed their appointments on Wednesdays and Saturdays. Now, the best time to walk-in because of these kind of issues is Monday through Friday between 2:30 and 3 p.m. This includes Wednesday, as Wednesday is no longer a light schedule day.

United States DOL has advised AILA of that the iCERT system will be taken out of service on Tuesday, August 25, from approximately 5:00 AM to 11:00 AM EDT for system upgrades. DOL will be adding many new features to the application in order to better serve our needs.
Salient features in the new release include:
• The ability to Withdraw Certified LCAs on-line
• The ability for Main Account Holders (Employers as well as Attorneys/Agents) to grant account permission to their Associate Accounts. This will include the ability to grant permission to create a case, submit completed cases, and withdraw cases submitted by the Associate Account Holder as well as view the Main Account Holder.
• The ability for Associate Account Holders (Employers as well as Attorneys/Agents) to create profiles for frequently used company/attorney information, and use those profiles to pre-fill applicable sections of the Form ETA9035E
• Allow the Associate Account Holders' applications to be pre-populated with the company information specified by the Main Account Holder
• Copy the Attorney/Agent's email address with certification and denial reason(s) that were previously only sent to the employer's main contact email
• An enhanced user guide detailing more application features
• Usability and navigation enhancements

The legacy LCA Online System will remain in service and will not be affected by the outage. Please contact the OFLC help desk at oflc.portal@dol.gov for further information on the outage. For specific questions on your application, application status, or other questions that do not pertain to the outage, please contact the OFLC National Processing Center at lca.chicago@dol.gov.

We all know that the nation's immigrant detention system is a mess. This consists of a collection of public and private facilities that have been widely criticized in recent years, including in two lawsuits that alleged poor conditions in a San Diego detention center. Also, abuse of detainees as well as corruption cases.

Expected to take from three to five years, the reform is intended to bring more order to a “disjointed” detention network of roughly 350 facilities that is heavily dependent on contractors. The effort will be overseen by a new Office of Detention Policy and Planning, headed by former Arizona corrections official Dora Schriro.

More immediate changes will include assigning federal detention managers to work in 23 facilities that Morton called the agency's most significant, which house more than 40 percent of the detainee population. ICE officials would not say if the agency's detention center in Otay Mesa, one of its larger contract facilities and the subject of two 2007 lawsuits over detention conditions, would be among them. We hope the above referenced changes will bring a much needed reform.

Read more...

Some more news to report from our local community. Three teenagers who were detained by immigration officials at a trolley station and sent to Mexico last month have been allowed to return to the United States on what is known as humanitarian parole.

The students, ages 15, 16 and 17, reunited with their families in San Diego about 10 a.m. Wednesday. They are working on hiring an attorney and will face an immigration judge in the near future to present their cases for legal residency.

The teens were among 21 suspected illegal immigrants detained at the Old Town trolley stop May 20 in a joint operation led by the U.S. Transportation Security Administration and Border Patrol.

The students, who were on their way to school, admitted to being in the country illegally after being questioned by federal agents and were voluntarily returned to Mexico, said Daryl Reed, supervisory agent for the Border Patrol. He said they were sent to Mexico after officials failed to find proper legal guardians for the teenagers in the United States.

Read more...

A few days ago, Attorney General Eric Holder, vacated the decision in Matter of Compean and directed the BIA and Immigration Judges to apply the decision in Matter of Lozada for claims of ineffective assistance of counsel, pending promulgation of relevant regulations.

Attorney General Eric Holder withdrew the decision issued by former Attorney General Mukasey on the last day of the Bush Administration, which had eviscerated the right to effective representation in Immigration Court proceedings. Attorney General Holder had stated during his confirmation process that he would review the Mukasey decision and that he disagreed with its reasoning.

By ensuring that immigrants seeking relief from the harsh consequences of deportation are assured that they will not be punished by the ineffective actions of their counsel, Attorney General Holder has reset the standard that the Constitution ensures.

I am not very proud to announce this but, ICE stated a few days ago that the San Diego County Sheriff’s Department is the first law enforcement body to implement the Secure Communities program, under which every individual booked into the three largest jails in San Diego County will have biometric-fingerprints checked in a DHS system for an immigration record.

Secure Communities, which is administered by U.S. Immigration and Customs Enforcement (ICE), streamlines the process by which ICE determines if an individual in the prison system is a removable criminal alien. Under the program, every individual booked into the three largest jails in San Diego County has their biometrics-fingerprints-checked in the U.S. Department of Homeland Security's (DHS) biometric system for any immigration record. Prior to the advent of Secure Communities, as part of the standard booking process, these fingerprints were only checked for criminal history information in the U.S. Department of Justice's (DOJ) biometric system.

If any fingerprints match those of someone in DHS's biometric system, the new automated process notifies ICE and the San Diego intake site submitting the fingerprints. ICE evaluates each case to determine the individual's immigration status and takes appropriate enforcement action after offenders complete their prison terms.

Illegal Immigrants will now be more reluctant to get in touch with law enforcement, thus expect more abuse towards illegals.

Read the ICE press release here..

A brief note to thank the brave men and women of the Armed Forces, and remember those who have lost their lives defending liberty.

Have a safe and happy Memorial Day!

President Barack Obama will gather congressional leaders at the White House next month to launch a policy discussion on immigration, according to an administration official, but legislative action isn't likely until next year at the earliest. he June 8 meeting is meant to show the White House is moving on the issue -- which is key for Hispanic advocacy groups that helped Mr. Obama get elected in November.

Mr. Obama has embraced the general concept of creating a program to provide a path to citizenship for illegal immigrants already in the U.S., while continuing to tighten the border with Mexico.

Read more

Several thousand immigration rights advocates marched in Los Angeles, San Diego and hundreds gathered in the rain in San Francisco on Friday, but crowds in California appeared much smaller than in previous May Day demonstrations.

Marches in downtown Los Angeles took on a festive atmosphere with people carrying signs and banging drums while vendors sold food, cotton candy and ice cream from pushcarts with ringing bells. One group walked to a building housing federal immigration offices and blared salsa music from loudspeakers.

Immigrants and supporters in San Francisco's Dolores Park hoped to keep immigration reform on Obama's agenda. They held signs calling for amnesty for undocumented immigrants and an end to immigration enforcement raids. Many argued that allowing undocumented immigrants to become citizens and take a more active role in the economy will improve the country's financial outlook. Dozens of students participated, many calling for passage of the DREAM Act, which was reintroduced in the U.S. Senate in March, and would make undocumented immigrants brought into the U.S. under the age of 15 eligible for in-state tuition.

Read more...

The U.S. Department of State (DOS) has issued the Visa Bulletin for May 2009, which announced EB3 unavailability for all countries of chargeability. The EB2 cutoff dates for China and India had been February 15, 2005 and February 15, 2004, respectively, and have not changed for May 2009. The EB3 visa unavailability is due to high demand for immigrant visa numbers and, particularly, a large number of cases with older priority dates.

The EB2 category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change from the prior month. The cutoff date for India remains as February 15, 2004. China's cutoff date is still February 15, 2005.

Lets see what the summer will hold for all visa categories.

Living in a border city like San Diego we hear stories like this one from time to time. The AP report about Pedro Guzman has been an American citizen all his life. Yet in 2007, the 31-year-old Los Angeles native — in jail for a misdemeanor, mentally ill and never able to read or write — signed a waiver agreeing to leave the country without a hearing and was deported to Mexico as an illegal immigrant.

For almost three months, Guzman slept in the streets, bathed in filthy rivers and ate out of trash cans while his mother scoured the city of Tijuana, its hospitals and morgues, clutching his photo in her hand. He was finally found trying to cross the border at Calexico, 100 miles away.

In a drive to crack down on illegal immigrants, the United States has locked up or thrown out dozens, probably many more, of its own citizens over the past eight years. A monthslong AP investigation has documented 55 such cases, on the basis of interviews, lawsuits and documents obtained under the Freedom of Information Act. These citizens are detained for anything from a day to five years. Immigration lawyers across the nation say there are actually hundreds of such cases.

Read more...

From to time to time, we update our readers on the recent changes and updates coming from the local Immigration office. San Diego has 2 main locations, one in Chula Vista, and the other in Downtown San Diego. Once a month, the American Immigration Lawyers Association local chapter meet, with the government reps and receive updates on recent policy changes. Here are some of the questions discussed:

1. How long is a file held at the District Office after an adjustment or naturalization appointment? There have been reports of files sent to the National Records Center when a naturalization appointment was rescheduled by USCIS or when an applicanUattorney timely rescheduled an appointment If this occurs will the rescheduled appointment be delayed?

Approvals are promptly shipped to the National Records Center or Federal
Records Center. Denials are kept for about 30 days for opportunities to verify AR11
address databases and filing of MTRs and Waivers. If an interview applicant is a no show, the file is administratively closed and shipped out to the National Records Center within 1 week. A reschedule will not occur until the local office has the file.

2. Applicants are no longer receiving I-551 (Green Card) stamps at the successful conclusion of their adjustment of status interview. When did this policy change? Are these applicants allowed to keep their Employment Authorization Documents and Advance Parole Documents pending receipt of their Resident Alien Cards?

This Procedure changed recently. Applicants can retain all documents evidencing their current immigration status, Once the green card received documents such as Paroles and Work Authorization documents should be returned to USCIS. All approvals are subject to supervisory review. If approved, notification is sent out within 30 days. Applicants who receive a “green card” should make an effort to return their advance parole and/or EAD cards by mail to 880 Front Street, Room B268, San Diego, CA 92101 with a notation of the A number and that the applicant is now a permanent resident

3. Clients/Applicants report that they are receiving biometrics appointments from the National Benefits Center when they already have appointment notices. Is there a "glitch" in the system?

Local Immigration office is working with the National Benefits Office to address this glitch.

We will keep our readers updated with more information.

We post a practice tip from AILA member Jill Bussey at Baker and McKenzie, very useful

A close review of Paragraph E of the April 2009 Visa Bulletin, issued March 9, 2009, reveals the Employment Third Preference Worldwide and Philippine cut off of March 1, 2003 was effective immediately upon issuance of the Visa Bulletin. This has been confirmed by communications with Charles Oppenheim of the State Department. Mr. Oppenheim indicated he attempted to stave the cut-off through March, however the demand for EB3 numbers was too high. Mr. Oppenheim reiterated the information found in the Bulletin, "since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or "unavailability" at any time cannot be ruled out." Mr. Oppenheim advised 85-95% of Employment Based adjudications occur through USCIS, which has been expediting the processing of Third Preference cases. He also shared that he has seen increased demand in First Preference cases from 2007. It is highly unlikely the Third Preference category will remain available in the near future. Further retrogression or "unavailability" may occur at any time.

Continue reading "Tips Regarding EB-3 Retrogression in April Visa Bulletin" »

As the H1B season coming to an end, many lawyers, like us, are busy with preparing the H1B petitions. It feels like getting ready for a race, a big race. So who is going to win the lottery this year? Last year Indian tech firms such as TCS, Infosys and Wipro apart from scandal-hit Satyam Computer Services received maximum number of H1B work permits, as these companies sent more professionals to the US.

India's second biggest software exporter led the list of H1B visas issued last year with around 4,559 work permits, Wipro received 2,678 approvals, Satyam managed some 1,919 and TCS received around 1,539 H1B permits. According to the data released by the United States Citizenship and Immigration Services (USCIS), Microsoft, the world's biggest software maker, stood fourth in the list of top H1B users with around 1,037 work permits for foreign workers.

Because of the grim economy, the prediction is that this year's numbers will be lower, at the same time, companies are still in line to secure precious H1B spots.

Click here to see the complete list of companies that got H1B visas in 2008 Download file