Visa Lawyer Blog

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...

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Posted In: Family Visas , San Diego Immigration Law

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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.

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Posted In: Deportation & Removal , Family Visas , San Diego Immigration Law

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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..

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Posted In: Deportation & Removal , San Diego Immigration Law

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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!

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Posted In: San Diego Immigration Law

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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.

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Posted In: Citizenship , San Diego Immigration Law

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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.

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Posted In: Citizenship , Comprehensive Immigration Reform , Family Visas , San Diego Immigration Law

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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.

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Posted In: Immigrant Visas , San Diego Immigration Law , Work Visas

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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.

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Posted In: Citizenship , San Diego Immigration Law

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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.

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Posted In: San Diego Immigration Law

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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" »

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Posted In: San Diego Immigration Law , Work Visas

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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

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Posted In: San Diego Immigration Law , Updates , Work Visas

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H-1B Nonimmigrant Visa Petitions for FY2010 (October 1, 2009 through September 30, 2010) may be filed starting April 1, 2009. Here are some tips provided by AILA.

How do I get my LCA before April 1, 2009?

As you are unable to submit an LCA for certification to the DOL earlier than six months prior to the beginning date of the period of intended employment (20 CFR §655.730(b)), you must set your employment start date on the LCA prior to October 1, 2009, if you want to have an LCA in hand before the filing period for H-1B cap subject petitions begins on April 1, 2009. For example, you can file and have certified an LCA that has a start date of September 15, 2009. But remember that the LCA end date cannot be longer than 3 years from the start date, so in this example the end date would be September 15, 2009. Also remember to make sure to annotate your I-129 form with a start date of October 1, 2009, but with an expiration date that coincides with the expiration date of the LCA.

What if the U.S. Degree will not be awarded by 3/31/09?

The USCIS has approved H-1B petitions for foreign nationals who have earned degrees from U.S. institutions of higher education, where the foreign national has completed all requirements for the degree, and hence, has "earned" the degree, but the degree has not been conferred. You must submit evidence that the foreign national has completed all requirements for the degree from an official at the school who is qualified to provide that information (e.g. Dean, Registrar or Department head). Be wary of letters prepared by unauthorized employees at the school stating that the student has completed all requirements toward a degree, when in fact there are still examinations or papers to complete. Be mindful that use of such documentation when the student has not completed the program may be considered fraud and such a document may result in the case being denied on the basis of ineligibility at the time of filing.

Can multiple identical petitions be filed for the same foreign national?

The USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund filing fees for duplicative or multiple H-1B petitions. The rules does not prevent related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same foreign national for different positions, based on legitimate business need. Members are reminded to include evidence and/or an explanation in each filing to demonstrate why the filing is not a duplicate.

Will an F-1 nonimmigrant student be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009?

On April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who have properly (timely) filed an H-1B petition and change of status request whose F-1 status will expire before October 1. The student is in valid status and can continue to work while the petition is pending at the USCIS. If the case is rejected, the student's F-1 status will dictate the continued ability to remain in the U.S. If the case is accepted under the quota, the student will have an extension that enables the student to remain in the U.S. and continue to work until the requested start date indicated in the H-1B petition takes effect. Therefore it is important to make sure you select change of status in Section 3 of the I-129 form to get this protection.

Continue reading "H1B Visa Lawyer - Filing Tips and Resources" »

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Posted In: San Diego Immigration Law , Work Visas

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Another evidence that the Immigration debate is heating up here in San Diego and across the nation. For the first time, Border Patrol agents formally sealed off access on the U.S. side to the plaza, for years a popular meeting place on the U.S.-Mexico border for families to visit through the fence.

The Department of Homeland Security announced late last year that it will prohibit all public access to the park where a secondary wall is under construction. Since then, the plaza has become a symbolic touchstone for those who debate border enforcement policies.

A phalanx of Border Patrol agents in off-road vehicles blocked access to the plaza entrance, causing demonstrators on both sides of the issue to gather below the bluff.

Read more...

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Posted In: San Diego Immigration Law

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Last year, the H-1B cap was reached after a one-week filing window starting April 1st. CIS received over 143,000 petitions for the basic quota, and 31,000 for the Masters Cap, resulting in a lottery selection process. The 11,000 not selected for the Masters level H-1B cap were returned to the basic pool and had “two bites at the apple.”

This year, we expect another lottery for both categories. Due to the recession, petition volume is expected to be significantly reduced, with perhaps a better than 65% success rate for the basic group and a 90% success rate for the advanced degree holders. An employer may only submit one petition per candidate.

Employers should review their 2009/2010 employment needs to determine the benefits of participating in this year’s H-1B cycle. Although the start date on the petition must be October 1, 2009, an approval is good for three years and the employment may actually begin later. Of particular concern are current employees with expiring status: F-1 OPT Practical Trainee, TN TradeNAFTA or J-1 Practical Trainee.

The quota does not apply to foreign nationals who currently have H-1B status and seek to extend their status, or change employers. Citizens of Chile , Singapore and Australia have separate H-1B/E-3 quotas, which have never been exhausted and which remain open year-round.

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Posted In: San Diego Immigration Law , Work Visas

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It is nice to be recognized by the media from time to time. The American Bar Journal is taking an interest in Immigration law, in the February issue they feature our office and the unique H2A practice we operate.

H-2As are used by seasonal agricultural workers, who must prove that (a) they have residences in other countries they have no intention of abandoning, and that (b) they will be in the United States no longer than eight months. The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. We are honored.

Read the article here

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Posted In: Immigrant Visas , San Diego Immigration Law , Work Visas

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I have tried to cover most of the key issues that a couple will need in order to succeed in filing the marriage based Green Card. But with a topic a involved and ever changing as this one, there are always questions that couples still like to ask. We have compiled a list of the most common questions that people ask us when attempting to file the Marriage based Green Application in the United States. Hopefully the following Questions and Answers will make your journey through this process a little less confusing.

1. How soon can an applicant that entered the US as a tourist or under the Visa Waiver Program marry a US Citizen, Could they apply for the Green Card in the United States?

Answer: A US citizen can marry a tourist or VW visitor and apply for the Green Card from within the US. It is better to marry 60 days after entry to lift the presumption that the immigrant entered the US in order to get married.

2. How soon after marriage can the US Citizen petition and file the immigration paperwork for the immigrant spouse?

Answer: There is no waiting period that must pass before the immigration petition can be filed. Make sure to have the certified Marriage Certificate registered with the county before you can file.

3. How long will it take to get the work permit after filing the case? How long will it take to get to the final interview after filing?

Answer: Currently it takes 90 days after filing the Marriage based Green Application for the Government to issue the work permit. In some cases the final interview is scheduled even before the Work permit can be issued. In this case, if there is an approval at the interview, there will be no need for the work permit at that time. In most cases though, interviews are scheduled, 5 months or so after filing.

4. What if there is a mistake in your name or date of birth on the Green Card?

Answer: If there is a mistake on your new Green Card you must take steps to correct it immediately. If you fail to do so, you will not be able to receive your social security number and any other documents as a result. You must file form I-90 (get it from USCIS.GOV website) with USCIS. Make sure to Check box d in part 2.2 of the application. There is NO FEE to pay as it was not your fault. You will need to mail the original card to the following address:

National Benefits Center
Attn: I-551 Corrections
705B SE Melody Lane, Box 2000
Lee's Summit, MO 64063

5. How do you know what taxes to file now that you are a Green Card holder?

Answer: The Internal Revenue Service has several publications you can download or obtain from a local IRS office. www.irs.gov
" Publication 519.....US Tax Guide for Aliens
" Publication 514.....Foreign Tax Credit for Individuals
" Publication 501.....Exemptions, Standard Deduction, and Filing Information
" Publication 54.......Tax Guide for US Citizens and Resident Aliens Abroad
6. How long does a person need to wait after getting the Conditional Green Card before Applying for US Citizenship?

Answer: If the Immigrant is still married to the US Citizen and living together 3 years after getting the Conditional Green, they may apply for Citizenship. If the couple is no longer married and living together, the immigrant must wait 5 years after getting the Conditional Green in order to apply.

Continue reading "San Diego Immigration Lawyer - Most Common Questions and Answers about the Marriage Based Adjustment of Status Process" »

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Posted In: Family Visas , San Diego Immigration Law

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Today is Christmas Eve, I wanted to wish all the best for those who celebrate. I wanted to reference an excellent article by Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit advocacy organization in Washington. His comments were featured today at the La Prensa San Diego Website.

Last week, Homeland Security Secretary Chertoff claimed credit for “reversing” illegal immigration, but the credit should more accurately fall to those in the Bush Administration who let the economy and our financial regulatory agencies collapse during the President’s tenure. As we have often said, the best way to slow immigration to the United States is to dry up all the pesky economic opportunity that has run rampant in this country for so long. The Bush Administration is well on its way to making sure there is no excess opportunity or economic security milling about. But we’re sure that President Bush, had he watched Secretary Chertoff’s press conference, would shout a hardy “Heck of a job, Cherty!”

True, massive investments in border barriers, increases in detention bed space, and a huge expansion in Homeland Security personnel have put more enforcement resources on display. However, to say that these resources have contributed significantly to a decrease in legal or illegal immigration – a phenomenon we have observed since the economy began slowing in 2001 – is like saying there is less rain because people buy umbrellas. Despite conspicuous and record-setting immigration raids, new strategies to streamline the deportation of immigrant workers with minimal judicial oversight, and continued bureaucratic barriers to legal immigration, the Chertoff claim to making significant progress in controlling legal or illegal immigration stretches the definition of causality.

Regardless of the Secretary’s claims and the hard work of our nation’s dedicated Homeland Security workforce, the Department has seen more than its share of controversy. In the past year, we have seen front page exposés on the Department’s failure to provide basic medical care to immigrants in detention, an unacceptable rate of immigrants dying in DHS custody, and, as reported in the Washington Post last week, a failure to process and swear-in new citizens hoping to vote in November’s election. These seem to be basic functions we would expect our government to execute.

But 2008 also saw an election where immigrant and Latino voters turned out to vote for change in record numbers. The tired politics of immigrant bashing once again failed to deliver for firebrand politicians. The New Year and the new Congress and Administration hold great promise for progress on immigration reform. Now it is up to people of conscience to hold our elected representatives accountable and demand immigration reform that benefits the American people, America’s economic and homeland security, and moves us towards a new era of recognizing that immigration is not a source of weakness for America, it is a sign of our strength

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Posted In: San Diego Immigration Law

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Immigration law is important and that is all that we cover most of the time. But our immigrant readers, may be facing other legal challenges from time to time. So we rely on our lawyer friends from across the country, to provide guest articles and reports. This week we are proud to feature Attorney Charles Ward's Family Law expertise. Charles is an experienced Family lawyer that often assists me with Family Immigration matters. I am grateful for his contribution to the Blog.

Although no one enters into a marriage expecting it to end, about 50 percent of all married couples in California eventually separate. With a prenup you can protect yourself in the event of a dissolution of marriage (divorce).

The prenuptial agreement is a legal device designed to remove some of the concerns and liabilities foisted upon a married couple. A properly crafted prenup can solve disagreements before they happen, whether involving personal business involvement, individually held real estate and property, credit hangups and debt, the disposition of finances, or any monetary arrangements left over from life before marriage. It's also a useful tool for post-marriage arrangements. Support payments, income arrangements and property rights can all be sorted out in advance, to the satisfaction of both parties.

The functional objectives of a prenuptial agreement can include the following:
• Limitations on spousal support (SS) in the event the marriage is eventually dissolved: do you want to support your spouse after a divorce?
• Generate and enable specific property rights, including limitations on the creation of community property (CP) during the marriage.
• Establish the preservation of separate property (SP) during the marriage, items which the individual owned beforehand: protect your home and interests.
• Define the values of specific items of separate property, such as stock market investments and cars.
• Render your income separate property.

A prenuptial agreement, also called an antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is basically a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage, and contain promises, representations, and disclosures regarding details of the couples finances. Couples can also enter into a post-marital agreement to cover the same concerns.

Very often, people who have substantial property or income will want to protect it from the high rate of divorce. However, prenuptial agreements are becoming more and more common among people from all walks of life, including young people starting off, seniors nearing retirement, and couples with immigration cases.
Our California Supreme Court stated it to be their policy that these agreements are to be enforced as promoting marriage in a world of marital uncertainty.

Under California Family Code Section 1600, The Uniform Premarital Agreement Act enables the legal functionality of a prenuptial agreement in the state of California. Recent California Supreme Court cases, such as Bonds v. Bonds and Pendleton v. Fireman, made clear the intent of the court to uphold these agreements and thereby promote marriage.

If you are interested or have any questions regarding a prenuptial agreement please feel free to give us a call or email me.

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Posted In: Family Visas , News , San Diego Immigration Law

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As the year comes to an end, we wanted to update our local readers about the upcoming Oath ceremonies for 2009. This may be useful to people that are in the process of applying for Citizenship and may need to plan ahead.

FINAL HEARING DATES FOR GOLDEN HALL FOR 2009

1/20/09 New Americans Museum N-600 ceremony for children 18 and under
1/28/09 Children’s Primary School, sponsor, Golden Hall
2/18/09 San Diego DAR
3/18/09 American Legion, Sponsor, Golden Hall
4/22/09 Golden Hall
5/20/09 Golden Hall
5/21/09 Memorial Day all-military ceremony aboard USS MIDWAY MUSEUM,
6/17/09 Golden Hall
7//02/09 Independence Day all-military ceremony at the Cabrillo National Monument
7/22/09 La Jolla DAR/CAR, sponsor, Golden Hall
8/19/09 Golden Hall
9/17/09 Citizenship Day/Constitution Week all-military ceremony at Camp Pendleton
9/23/09 Golden Hall
10/21/09 Golden Hall
11/10/09 Veterans Day all-military ceremony aboard the USS MIDWAY Museum,
11/18/09 Golden Hall
12/16/09 Golden Hall

2009 Chula Vista Final Hearing Schedule

All dates at 8:00 a.m., 9:00 a.m., 10:00 a.m. and 11:00 a.m. at Chula Vista Field Office

January 28
February 25
March 25
April 29
May 27
June 24
July 29
August 26
September 30
October 28
November 18
December 16

Continue reading "San Diego Immigration Lawyer reports information on the dates of the 2009 Oath Ceremonies " »

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Posted In: Citizenship , San Diego Immigration Law

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U.S. Border Patrol announced that they discovered an incomplete tunnel that originates in Tijuana, Mexico and stretches about 10 feet into San Diego. Several Taxi Drivers that cross in the area reported suspicious activity in that area.

Border Patrol spokesman Julius Alatorre says an agency contractor discovered the tunnel when a driver crushed into a soft spot in the pavement. A hammer and chisel — believed to be abandoned long ago — were found inside. Dozens of secret tunnels have been found along the U.S.-Mexico in recent years, many of them incomplete. Sources confirm they are designed to smuggle drugs or people.

Read the article here...

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Posted In: Comprehensive Immigration Reform , Deportation & Removal , San Diego Immigration Law

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The nursing shortage in the United States is becoming increasingly problematic and may adversely affect the health care industry. According to a U.S. Department of Health and Human Services (HHS) 2007 study, the United States will require 1.2 million new Registered Nurses (RNs) by 2014 to meet the nursing demand: approximately 500,000 RNs to replace nurses leaving the field, and “an additional 700,000 to meet growing demand for nursing services.”

In meetings with nursing organizations and stakeholders, the Citizenship and Immigration Services (CIS) Ombudsman heard concerns about the time it takes for a foreign nurse to be admitted to the United States to work. We link t a recent USCIS memo that addresses some of the current problems with Nurse Immigration and possible solutions for the new future.

The linked report, while specifically providing recommendations for improving the processing of Schedule A nurse cases, should also be required reading for all persons active in the field of recruiting foreign nurses to the United States.

The report provides an excellent history of the issues and discusses the effect of the nurse shortage in the United States. It explains the limited nonimmigrant visa options available to nurses (TN, H-1B and H-1C). Specifically, the report provides statistics of how few H-1B nurse cases have been approved recently (38 cases in 2006, 66 cases in 2007 and only 136 in 2008). In addition, the report discusses the immigrant visa process for nurses through Schedule A and the two main problems with that process, i.e., the delays at USCIS in processing the I-140 visa petition and the immigrant visa quota delays. Please note that the report references the fact that one of the Service Centers charged with adjudicating Schedule A casework is some 4 months behind what the Processing Report presently indicates.

The Ombudsman concludes the report with the following recommendations:

* That USCIS separate and prioritize Schedule A green card nurse applications so that they can be expedited upon immigrant visa availability.
* That USCIS centralize Schedule A nurse applications at one designated USCIS service center to facilitate more efficient and consistent processing of Schedule A applications.
* That USCIS regularly communicate with DOL and develop points of contact at DOL to discuss concerns and direct inquiries regarding the processing of nurse applications.

In conclusion, while the report makes recommendations to improve the processing of the I-140 Schedule A petitions at the USCIS, legislative action is still needed to increase the number of immigrant visas available each year for nurses.

Read the Memo here Download file

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Posted In: Immigrant Visas , News , San Diego Immigration Law , Work Visas

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The Name Check that are holding thousands of Citizenship and regular adjustment cases, are of major concern to many of our Blog readers and clients. Clients call me almost every day asking why there is no N400 interview scheduled, why after passing the interview they are still pending for months and months. I often tell them that the security clearance issue must be looked at on a case by case basis.

Earlier this year USCIS announced that by December, 2008, the FBI will process all name checks that have been pending more than one year. This is true in many cases, yet there are still numerous files that are pending.

By February, 2009, the FBI will process all name checks that have been pending more than 180 days. Finally, by June, 2009, the FBI plans on processing 98% of all name checks within 30 days and the remaining 2% in 90 days. This could be great news, but I doubt they will reach this goal.

N-400 name check applications must be completed before the N-400 can be approved. Therefore, any viable plan to reduce the current name check times is welcome news, the problem is that applicants rely on such news and when in practice USCIS can't deliver, the quickly will loose the public's trust.

We will keep monitoring the situation and assist our clients as best we can, either with follow up, or litigation if necessary.

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The recent drug and illegal alien busts show how the new x-ray machine helps screen for contraband coming from Mexico. Customs and Border Protection officials say its the first machine of its kind at the border.

The xray machine sits at the entrance to San Ysidro's secondary inspection. That's where agents send vehicles for extra screening. Agents in secondary, in some cases, would tear cars apart in a sort of Easter Egg hunt for illicit items. Customs agents say they've seized more than 3000 pounds of drugs since they began using the machine. More....

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As Thanksgiving festivities end here in the US, we all have heard about horrible tragedy in India the loss of Rabbi and Rebbetzein Holzberg and the hundreds of people there.

Giving up friends, family and ultimately their lives in the service of the Jewish People. Their attack on Chabad was an attack against the free world.

The Holtzbergs arrived in Mumbai in 2003 to serve the small local Jewish community, visiting businesspeople and the throngs of tourists, many of them Israeli, who annually travel to the seaside city.

A cook at the chabad center, who had barricaded herself in a room, grabbed one of the couple's two children -- 2-year-old Moshe -- and escaped with another person, according to the Israeli newspaper Haaretz.

If you are in San Diego this week-Chabad invite you to come tonight for a special service in the memory of those who past away at "Chabad House San Diego" at 4:30 PM

Read more...

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The San Diego Union Tribune reports that San Diego County is set to participate in a new federal initiative that gives local law enforcement the ability to use fingerprints to check the immigration history and status of people who land in county jails. This is clearly a shift in the understanding that police officer are not immigration agents. But this will may well start to change.

The federally funded U.S. Immigration and Customs Enforcement program was announced this week by agency officials during the International Association of Chiefs of Police conference at the San Diego Convention Center.

Read more...

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According to the San Diego Union Tribune, although economic concerns reduced immigration to nearly a nonissue by the time the presidential campaign drew to a close, political experts believe it was largely responsible for the record turnout of Latino voters Tuesday, 66 percent of whom supported Barack Obama.

According to national exit poll results analyzed by the Pew Hispanic Center, only 32 percent of Latinos voted for Republican candidate John McCain, in spite of the Arizona senator's track record as a proponent of immigrant-friendly reforms. That total represents a significant drop from what George W. Bush amassed in 2004. Bush received between 40 percent and 44 percent of the Latino vote that year and 35 percent in 2000.

But the heated immigration debate that dominated headlines two years ago, when hundreds of thousands marched in San Diego and other cities demanding reforms, may have been the catalyst that sent Latinos to the polls.

Read more.....

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Exciting news to report from our border crossing here in San Diego. Jose Canseco was held for nearly 10 hours by immigration authorities after agents said they stopped the former baseball star with a fertility drug as he returned from Mexico.

Canceco was detained at San Diego's San Ysidro border crossing Thursday after agents searched his vehicle and said they found human chorionic gonadotropin, which is illegal without a prescription. A spokeswoman for U.S. Immigration and Customs Enforcement, Virginia Kice, said Canseco was ordered to appear in federal court in San Diego "related to an alleged smuggling violation".

Read more here

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As the political debates between both candidates heat up, so does the vision on the core issues. A recent excellent article by Prof. Wayne A. Cornelius, touches on a very important point relating to the immigration debate. The McCain-Palin campaign has embarked on an effort to court Latino voters by trashing Barack Obama's record on immigration reform.

Prof. Cornelius points out:

Beginning with his speeches to La Raza and other Latino groups last summer, McCain has also been trying to diminish Obama's role in the crafting of comprehensive immigration reform. That's another serious distortion of the record. Obama largely drafted the crucial Title III (work-site enforcement) section of the 2006 bill, which was the foundation for the same component of the 2007 comprehensive immigration reform bill.

As someone who has studied the twists and turns of immigration reform for nearly four decades, there is no question in my mind about which presidential candidate in 2008 is most strongly committed to immigration reform, and which is most likely to deliver on it during his first term.

Read More here

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I received so many emails following our most recent I-601 waiver posting about waiver success. Readers were encouraged by our clients success and learned how to plan a successful waiver. But what to do when the waiver is denied. Are there any options? I have provided below an extract from Laurel Scott's excellent article on waivers. Laurel like myself, is one of a few immigration lawyers specializing in this complex area of law.

So what to do when your I-601 waiver is denied?

An appeal following an administrative denial to an Application for Waiver of Grounds of Inadmissibility must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO does not like to overturn the discretionary decision on I-601 waivers. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable.

Once an appeal is filed, and forwarded to the AAO in Washington, DC, it is out of the hands of the USCIS office that denied the case. The OIC does not have more access to information about the appeal than the attorney. Direct inquiries to the AAO, not the office that denied the case.

Due to the lengthy processing time for appeals (can be 22 months or more) and low chance of success, consider refilling a de novo (new) I-601 packet instead, especially if the client attempted the first I-601 by himself and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Even starting over with a new immigrant visa petition may get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.

For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.
The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.

Continue reading "San Diego Immigration Attorney - I-601 Waiver Denial options and solutions" »

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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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Practicing Immigration Law in San Diego, just 20 minutes from the largest International crossing border in the world can be very exciting. The stories I hear from clients and our Government workers are amazing. Stories of government employees corruption are not new, and from time to time we hear of a big fish getting caught in the system. A recent New York Times article covers the San Diego and other cities immigration corruption situation.

If you can get a corrupt inspector, you have the keys to the kingdom,” said Andrew P. Black, an F.B.I. agent who supervises a multiagency task force focused on corruption on the San Diego border.

The smugglers use any ruse available to lure border workers but seem to favor deploying attractive women as bait. They flirt and charm and beg the officers, often middle-aged men, to “just this once” let an unauthorized relative or friend through. And then another and another.

Prosecutors believe this is how smugglers ensnared Mr. Gilliland - a local San Diego agent, who eventually pleaded guilty to taking $70,000 to $120,000 in exchange for letting hundreds of illegal immigrants pass through his lane.

We urge the government to exercise better screening in the hiring process of Border Patrol agents as the quality of recent recruits is shameful.

NY Times full story

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Only a few days ago, I reported on the massive ICE raid on the local bakery, The French Gourmet, and they did it again. U.S. Immigration and Customs Enforcement agents entered UCSD student housing to search an apartment without first notifying the university. What a surprise!

This behavior underscores a trend in the accelerating number of U.S. Immigration and Customs Enforcement (ICE) raids on workplaces, homes and schools nationwide—unnecessarily rough treatment of detainees that makes not only the threat of deportation, but detention itself a source of fear and anxiety.

Last Thursday morning, ICE agents entered the off-campus graduate housing unit of student Jorge Narvaez, 21, a legal U.S. resident. Earlier that morning, agents had carried out a criminal search warrant at the French Gourmet, a Pacific Beach bakery and bistro, and were proceeding on to suspected illegal workers' homes. “They asked me what's my legal status,” he said. “I had nothing to hide, so I let them in my home. I went outside and they went through all my stuff.”

The government is saying the agents made a mistake when they entered UCSD student housing to search an apartment without first notifying the university. I feel that they just have too much power and they like to show that. It is time for ICE agents to stop coercing the immigrants into waiving their right to appeal deportation orders. Stop scaring people about not only getting raided, but about detention and deportation. Stop using terror tactics in the community.

Read the Union Tribune Report here

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The recent number of raids, arrests, and criminal indictments against employers for worksite violations across the State by the Immigration and Customs Enforcement (“ICE”) branch of the Department of Homeland Security are clear indications that employers are on the frontline of the government’s efforts to stop illegal immigration.

Today Immigration and Customs Enforcement agents executed a criminal search warrant at a popular Pacific Beach bakery and restaurant, The French Gourmet, and have taken workers suspected of being illegally in the country into custody. I actually like the place and often get baked goods for the weekend. Recent raids against employers believed to have unauthorized workers have been based on ongoing criminal investigations by ICE. ICE has arrived at worksites with both criminal and civil warrants. It has searched businesses, frozen bank accounts, and arrested not only employees but also employers. I can only wonder why this little place was targeted and investigated. Read the Story here

So what can I advice the Owners of the French Gourmet?

Under IRCA, employers must complete Form I-9, Employment Eligibility and Verification, for all employees hired after November 6, 1986. ICE is authorized to conduct investigations to determine whether employers have knowingly employed unauthorized workers and failed to properly complete, present, or retain the Form I-9 for newly hired employees. An ICE investigation nearly always involve the examination of the employer’s I-9 files, even though the I-9s may not be the target of its investigation. In fact, ICE has recently hired forensic auditors to focus on I-9 enforcement.

To ensure compliance with the I-9 requirements under IRCA, a company should establish an I-9 policy that includes:

* The proper and timely completion and retention of Form I-9 for all employees hired after November 6, 1986;
* Zero-tolerance for the employment of individuals who do not provide the proper identity and employment eligibility documents for Form I-9;
* A tickler system for I-9s that require reverification;
* I-9 training for all company representatives who are part of the recruitment, orientation, and hiring processes for the company; and
* Regularly scheduled in-house I-9 audits.

Conducting self-audits puts a company in better position if it becomes the subject of an ICE investigation. While employers cannot verify whether documents used for employment authorization are authentic, self-audits establish good-faith compliance.

Best Tip for employers:

Personnel should be instructed not to provide any documentation or information to ICE unless there is a warrant issued, and to do so under the supervision of legal counsel. Note that ICE is required to give three-days notice before an I-9 audit, unless it presents a search warrant or subpoena.

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We had a busy week at the firm. In addition to the regular case load, we prepared for two immigration presentations. Earlier this week I presented to the Women in Science Association in San Diego, an association of scientists and researchers. We discussed the different ways they can obtain permanent residency based on their unique skills and education. Clearly, if such immigrants would like to stay, the system is very welcoming.

Later this week, I have spoken to a very different group also very much eager to find ways to stay in the US. I have given a workshop to an Hispanic community base organization here in town, helping their members obtain information on becoming Citizens and in many cases becoming legal in the US. The group consisted of hard working undocumented workers and family members, as well as long term Permanent Residents seeking to become Citizens.

We discussed various legal options, but I heard a lot of complaints about the governments treatment of the illegal population. Systematic raids of residential places by ICE, inhuman treatment of detained illegal immigrants, discrimination at work and more.

Just today the Union Tribune covered the poor detention conditions of immigrant detainees at prvate detention facilities in San Diego. In the past year, ICE and its contractors have come under fire for alleged mistreatment of immigrants. In San Diego last year, the American Civil Liberties Union twice sued the agency and CCA.

One lawsuit alleged overcrowding at the Otay Mesa facility, with three detainees housed in cells designed for two. The other alleged inadequate medical care, with detainees complaining of being denied treatment or waiting months for it.

While we are happy the highly skilled immigrants get the best options to stay, the US Immigration system and its officials should change they way they treat illegal immigrants and those that are trying to work with the system

Read the Union Tribune Story here

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The latest from the Border. Mexican nationals who are deported from the United States or leave voluntarily after being stopped are being offered free trips back to their hometowns under a pilot program launched yesterday in Tijuana.

The Tijuana program, dubbed Humanitarian Repatriation, will also ensure that returning Mexicans receive shelter, food, emergency medical care and temporary employment upon their return to Mexico.

Read more

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I recently posted an article about what is actually happening at a Marriage based adjustment interview Read here But it seems that from time to time, innocent immigrants may face unethical, criminally motivated immigration agents that take advantage of their position to exploit immigrants. We as lawyers make sure to follow our clients' cases from early document preparation stages to the final interview and beyond. We make sure that stories like the one you are about to read will never happen.

This is a story of a bad agent pursuing a young immigrant after her marriage interview with the spouse. The calls from the agent started three days later. He hinted, she said, at his power to derail her life and deport her relatives. He called her to a private meeting. And at noon on Dec. 21, in a parked car on Queens Boulevard, he named his price — not realizing that she was recording everything on the cellphone in her purse.
“I want sex,” he said on the recording. “One or two times. That’s all.

Read the story here

We expect the agency to create a system to root out these bad apples and protect the innocent immigrants. One of the advantages of hiring a lawyer to assist and be present the interview is to make sure that you will get the best treatment from the government at all times. If not, we are here to respond.

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As some of you may know, immigrants who entered the country illegally without a visa or without inspection may not seek Green Cards (Permanent residency) from inside the United States. Even if they have a U.S. citizen spouse or parent to petition for them, it will be difficult unless the pending petition was filed before April 30,2001 (when the Section 245i law was still active). Instead, they must leave the United States to obtain an immigrant visa at a consulate abroad. But once they leave the country, they generally trigger a three-year or 10-year bar to re-entering the country.

This was the topic of my most recent radio interview, where I discussed the above referenced issue with two of my clients present in the studio with me. The wife, who was brought illegally to the the US at the age of 5, hoped to obtain permanent residence based on her marriage to a U.S. citizen, but has to return to her home country to apply for an immigrant visa because of her unlawful entry into the United States. We prepared the I-601 waiver application for her and established, among other factors, that her husband will suffer extreme hardship if his wife is not allowed to return. Her I-601 application will be reviewed in April and we will keep our readers and radio listeners posted.

Listen to the show here

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Many of our marriage visa clients and prospective clients, often want to know what actually happens at the final Marriage adjustment of status Interview. I try to describe and explain as best as I can, and often wish I could actually record the interview, but of course we are not allowed. So I have decided to take one of my Law Clerks, Andrea with me to one of the interviews. At the conclusion of the interview, she wrote in detail the sequence of events:

The immigration office in Chula Vista opens at 7:00am. Even that early on a Thursday morning there is already a long line at the door. Since our client has an appointment, we are able to walk right in after first showing identification and passing through security. The office itself is bright and bustling with televisions showing the news and signs in different languages on the walls. There is an edge of nervousness in the air as people apply for or wait on the results of their visa and citizenship applications.
As we sit in the waiting area, the attorney prepares his client for her interview. She has applied for a green card based on her marriage to an American citizen. This interview will determine whether she is approved or denied. The attorney explains what the interview will be like and what types of questions the interviewer will ask. Most of the questions will be about the couple’s marriage and relationship. It is important for the interviewer to see that the marriage is based on a real relationship, and is not just a scheme to obtain citizenship. One last check to make sure all the documents are in order, and we are called to the interview room.

Our interviewer has a reputation for toughness. He is stern, direct and gets straight to the point. He asks for documents showing evidence of the couple’s shared life, in this case a bank statement from a joint account. He asks for photos of the couple’s wedding, one photo of the priest performing the ceremony and one group shot of the whole family. He staples the photos into his file with the rest of the documents. The interview itself has two parts. For the first part, the interviewer asks specific questions to both husband and wife. How did you two meet? Where did you go on your first date? When did you move in together? How did you propose to her? He asks the husband, “How do you plan to support your wife?” and looks over financial documents.

Continue reading "San Diego Immigration Lawyer - Marriage Visa - Adjustment of Status Interview inside report" »

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immigration Daily, published a great comment about Lou Dobbs' recent episode with the ADL, he may be picking the wrong group to mess with.....

CNN's Lou Dobbs latest racist behavior resulted in his calling
the Anti-Defamation League (ADL) "a joke" and labeling the Anti-
Defamation League (ADL) as "absolute advocate group[] for open
borders and amnesty for illegal aliens". His latest actions
attack the ADL, an organization founded in 1913 to "to stop the
defamation of the Jewish people and to secure justice and fair
treatment to all" and go beyond his usual rantings against pro-
immigrationists. Mr. Dobb's latest tirade against the ADL could
be his death knell since he has taken on America's Jewish
community. In response, the American Jewish Committee press release
http://www.ajc.org/site/apps/nlnet/content2.aspx?c=ijITI2PHKoG&b=849241&ct=5031777
denounced media's recent treatment of immigrants, including Mr.
Dobbs's show. It is Mr. Dobbs who is a joke, not ADL.

This is Lou...

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On January 8, 2008, I appeared on the Rick Amato Show on radio station KCBQ 1170AM. Based in San Diego, California, The Rick Amato Show broadcasts from The Edge of America™. The Show exposes issues, raises awareness and often makes a difference in the lives of people during times of injustice. I will be the regular legal analyst on immigration issues on this show and will appear on a monthly basis or as issues arise. I am excited to be part of this great Talk Show.

Rick Amato and I spent the first hour of the show (almost, you can skip the first 5 minutes) talking about immigration law, the H2B visas crisis and the New Hampshire primary. I discussed the impact of Immigration on the elections and how the different candidates view the immigration issues. Listen to the podcast from the link Below.

Click Here to listen

Here is a link to the Written article about the show

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Dear Readers,

It is time to think positive thoughts for 2008 and beyond. So, here is a warm wish for you and your loved ones the very best in the New Year.

Yours,

Jacob

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Last month ICE issued a new directive relating to detained arriving aliens who are found to have a credible fear by an Immigration Judge or USCIS officer.

The new policy can be found on AILA's website: AILA Doc. No. 07111264 (Nov. 12, 2007).

The new policy implements a two-part analysis for making parole determination as they relate to detained arriving aliens who are found to have a credible fear of persecution or torture by an Immigration Judge or USCIS officer only. Step one of the analysis includes establishing identity, flight risk and danger to the community. The directive indicates which documents will be acceptable including a valid government issued document and affidavits from third parties. Step two is an "assessment of whether the alien has established that he or she falls within one or more of the five categories" in 8 CFR section 212.5(b).

After the deportation officer completes the Record of Determination/Parole Determination Worksheet it will then be reviewed by supervisor and field officer before a final determination is made. The Officer in Charge no longer has the authority to make the parole determination alone.

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