Visa Lawyer Blog

We previously covered the abuse that many European visitors suffer at the ports of entry to the US.
Each year, thousands of would-be visitors from 27 so-called visa waiver countries are turned away when they present their passports, said a spokeswoman for Customs and Border Protection. In the last seven months, 3,300 people have been rejected and more than 8 million admitted.

Read the shocking story of an Italian visitor, and his 10 day detention at an Immigration Jail for no apparent reason. Click here to Read

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Immigration lawyers and impatient immigrants have been waiting too long for something to happen, and the new Bills introduced a few days ago may be a blessing. One Bil, H.R. 5882, to “recapture” employment-based (EB) green cards that Congress authorized in the past but that went unused before the end of past fiscal years due to government processing delays. Analysts estimate that approximately 200,000 unused EB green cards will be brought back into supply for all employment-based workers.

A new Bill to save he Nursing Shortage has been introduced as well. It is HR 5924, The key points of the legislation are:

1. Lifting of retrogression for Schedule A workers - Any immigrant visa quotas or caps are waived for all visa applications filed for Shortage Occupations (Schedule A occupations: Physical Therapists and Registered Nurses), provided that the I-140 is filed prior to September 30, 2011.

2. 20,000 primary beneficiary quota - While there is no retrogression for Schedule A cases filed before September 30, 2011, Consulates may not approve more than 20,000 primary beneficiary visas in any one year. There is no quota for the immediate family members of such beneficiaries.

3. Expedited Review - The USCIS must review -- and approve or issue an RFE -- on all Schedule A I-140 cases within 30 days of receipt.

4. Grant Fee - All primary beneficiary nursing visas issued under this legislation must pay a fee of $1500. Katrina-effected and HPSA employers do not have to pay the fee.

5. Grant Program - These fees will fund a Grant program. Schools of nursing may draw on this fund based on their student populations. The fees are to be used to attract, train, and retain nursing faculty, purchase educational equipment, expand infrastructure, and attract students.

6. Liberalized US Citizenship for some Health Care workers - Time spent by US Permanent Resident Health acre workers in a developing country will not be held against them in their endeavors to become US citizens.

7. Obligation Attestation - Immigrant visa applicants must attest that they do not owe their country of residence or origin a financial obligation. An obligation is defined as financial assistance that the intending immigrant incurred to defray the costs of education in consideration for a commitment to continue to work in that county.

We welcome the new legislation, the bill will take nurses out of the green card caps until 2011 with a limit of 20,000 principle applicants per year. We will keep you posted with new developments as they become available.

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According to today's USCIS press release, it currently takes almost 9 months to process a naturalization case filed in San Diego County during Summer of 2007. Cases filed in Washington DC seem to have the most delays with close to 15 months.

Why the delay? Last July, USCIS received 460,000 applications for naturalization. That was three times the record for any previous month. For the year, USCIS received 1.4 million naturalization applications, almost double the normal annual volume.

USCIS is hiring and training hundreds of additional immigration officers to adjudicate these cases. The agency is also conducting naturalization interviews on weekends, after normal business hours and in additional locations.

Read the press release here

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A few days ago we reported on the new OPT rule offering some much needed H1B relief. Only 3 days after it was submitted by the U.S. Department of Homeland Security on March 31, 2008, the Office of Management and Budget finished reviewing the interim final rule on Optional Practical Training (OPT). This brings much-needed relief to students with degrees in science, technology, engineering, and math, extending the total OPT time from 12 to 29 months. In addition, any student who is beneficiary of a pending H1B petition at the time the OPT authorization is scheduled to expire will be able to extend status until the beginning of the fiscal year.

Read the Q and A on the rule here Download file

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U.S. Citizenship and Immigration Services (USCIS) and the Federal Bureau of Investigation (FBI) recently announced a joint plan to eliminate the backlog of name checks pending with the FBI.

USCIS and the FBI established a series of milestones prioritizing work based on the age of the pending name check. The FBI has already eliminated all name check cases pending more than four years.

“This plan of action is the product of a strong partnership between USCIS and the FBI to eliminate the backlogs and to strengthen national security,” said USCIS Director Emilio Gonzalez.

By increasing staff, expanding resources, and applying new business processes, the goal is to complete 98 percent of all name checks within 30 days. USCIS and the FBI intend to resolve the remaining two percent, which represent the most difficult name checks and require additional time to complete, within 90 days or less. The goal is to achieve and sustain these processing times by June 2009.

The joint plan will focus on resolving the oldest pending FBI name checks first. USCIS has also requested that the FBI prioritize resolution of approximately 29,800 pending name checks from naturalization applicants submitted to the FBI before May 2006 where the naturalization applicant was already interviewed.

The target milestones for processing name checks are:

Completion Goal


Category

May 2008 Process all name checks pending more than three years
July 2008 Process all name checks pending more than two years
November 2008 Process all name checks pending more than one year
February 2009 Process all name checks pending more than 180 days
June 2009 Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days

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As we are anxiously waiting for the H1B lottery to start tomorrow, the government providing some relief for those that are waiting to get their visas and for future students graduates about to apply for work permits. The U.S. Department of Homeland Security ("DHS") released today an Interim Final Rule extending the period of Optional Practical Training ("OPT") from 12 to 29 months for qualified F-1 nonimmigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.

"This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy," said DHS Secretary Michael Chertoff. "By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens."

Another aspect of the rule responds to the situation in which an F-1 student's status and work authorization expires before he or she can begin employment under the H-1B visa program. The Rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The Rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

To be eligible for an OPT extension, an F-1nonimmigrant student must:

* Currently be participating in a 12-month period of approved post-completion OPT;
* Have successfully completed a degree in science, technology, engineering, or mathematics ("STEM") included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program;
* Be working for a U.S. employer in a job directly related to the student's major area of study;
* Be working for, or accepted employment with, an employer enrolled in CIS' E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees; and Properly maintain F-1 status.

Read the rule here

FAQ on OPT extensions Download file

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The American Immigration Lawyers Association has provided us with the following information about when family-based adjustment applications under INA sec. 245 get placed in the interview queue, in light of the Feb. 4, 2008 memo from the Immigration Service regarding Name Check Delays: Assuming that an application is otherwise ready to be placed into the interview queue, and the only item remaining is the name check, then the application will be placed in the queue in time for the application to be ready to be scheduled for interview as of the 180th day.

If the application is not ready to be placed into the interview queue (for example, if the biometrics have not been taken), then the application will not be placed into the queue, even if the name check has been completed. USCIS reminds the public that the Field Offices schedule cases when they have available interview slots. The automated system by which Field Offices schedule interviews automatically schedules applications on a first-in, first-out basis (based on the date the filing was received at USCIS, which usually would be when received at the Lockbox), once the NBC identifies a case as interview ready.

I hope the new policy will streamline the process and will speed up the adjustment of status interview scheduling and adjudications.

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The government is not making it any easier for employers these days. Attorney General Michael B. Mukasey announced higher civil fines against employers who violate federal immigration laws. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase by as much as $5,000. The new rule will take effect on March 27, 2008, and will be published in the Federal Register early next week.

Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

I suggest that all employers concerned with this rule, review all internal hiring practices, update all I-9 forms and verify, and most importantly set up an immigration policy in the work place.

Read more on the new rule here

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For those of you that have been following my FBI name check updates and providing such a positive feedback. Thank you. Here is the recent update from our local office but this will apply anywhere in the country:

As members may know, all persons who apply for citizenship or LPR status are subjected to a fingerprint check as well as an FBI name check procedure. The fingerprint part of that process is normally resolved within 48 to 72 hours. The name check process, by contrast, can take anywhere from a few weeks to a few years to resolve.

In order to reduce the administrative burdens caused by the sharp increase in litigation caused by the old policy, USCIS has changed its policy for adjustment of status applications through a Memo from Associate Director Michael Yates on February 4, 2008. Where an adjustment of status application is otherwise approvable and the FBI name check request has been pending form more than 180 days, the adjustment application shall be approved. If adverse information is obtained after the case is approved, USCIS may move to rescind the adjustment approval and initiate removal proceedings.

Please note that the previous policy remains unchanged for naturalization cases. Thus, no naturalization case will be approved prior to the successful completion of the FBI name check process.

In the most recent meeting of the AILA/CIS committee, District Director Paul Pierre confirmed that his office and staff are fully aware of the new Interoffice Memorandum from Associate Director Michael Yates. As members may know, San Diego continues to have one of the fastest AOS adjudication timetables in the U.S. The San Diego District will move to pull and adjudicate all cases affected by the new policy as soon as possible.

In order to identify and address those cases which have been pending the longest, the local office will pull all cases pending more than 180 days past the interview date. They understand that 180 days past interview is probably a few months past the date that the name check was originally started but they have to start somewhere. If new fingerprints are needed, the applicant will be rescheduled for prints. After the prints are taken, the case can be adjudicated even if the name check is still pending. If new fingerprints are not needed, the case will be immediately adjudicated.

While the local office refused to formally confirm the number of local AOS cases currently delayed under the name check procedure, informally it is understood that there may be approximately 1200 cases. Unfortunately, these will not all be completed before inquiry day on Tuesday. Members are encouraged to wait at least 6 months past the case interview date before submitting an e-mail case inquiry. Please note that the e-mail inquiry autotext reply to name check subject cases has not yet been updated. Until that happens, members may receive text stating the old policy even though that policy is no longer in effect for AOS cases.

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We were the first ones to report the new policy and changes in background check procedures announced by USCIS on February 4, 2008. Read our post here. The response from the Blog readers has been very positive and supportive.

The most recent update is that Service Center Operations (SCOPS) liaison has confirmed that USCIS agencies are conducting "sweeps" to find adjustment of status cases that can be reviewed for adjudication under the changes discussed above.

AILA reports that, Pennsylvania District Court Holds FBI Name Check Delays in Naturalization Adjudications Are Unreasonable The U.S. District Court for the Eastern District of Pennsylvania finds for plaintiffs in a suit to end naturalization application adjudication delays due to FBI name checks. Also, it determines it is necessary to require USCIS to revise its regulations to address these delays. Read the case here Download file

Some of our clients and Blog readers were able to use my post analysis and a copy of the memo to start expedited process of their name check cases. Officer in certain states were not even aware of the memo until they saw our Blog post presented by the readers. We are glad to hear that and see a use in practice with the posted information.

I have also filed several requests to expedite cases based on the new memo and here is the response from our local San Diego Office:

yes, over 180 days, some of them had finger prints expired and your case is one of them. The office is in the process of sorting them all out. The ones that had finger print expired will be scheduled. Cases in which the finger print had not expired and over 180 days will be reveiwed which will take time because the Officers had all their work divided prior to having this good news. It will take at least until 90 days these cases to get adjudicated. The sooner you will have the finger prints done the better. Please remember only CASES that are plain Security Checks are pending and no other issues involved. If there are I-72 outstanding and other issues it will not be adjudicated.

Let's hope the new policy will bring much needed name check relief.

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Much has been said about the DV Green Card lottery program, some even said that the program will be terminated all together. But for now the DHS issued a revision of the photo specification rule.

This rule revises the photo requirement as part of the application process for a Diversity Immigrant Visa, to require that the photo be in color. Color photographs enhance facial recognition and reduce the opportunity for fraud.

In the past, photographs submitted at the time of electronically filing petitions for consideration under INA 203(c) for issuance of diversity immigrant visas could be in either color or black and white. As part of the general harmonization of photo requirements for all visa functions, this requirement is being amended to make color photos the only acceptable photographs for a petition for consideration for diversity visa issuance. Compared to black and white, color photographs enhance the facial recognition process and reduce the opportunity for fraud.

Read the Fed rules here Download file

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Finally some relief is coming to those pending FBI name check processing. This February 4, 2008, USCIS Michael Aytes memorandum modifies existing guidance regarding background and security checks on applicants, petitioners, and beneficiaries seeking certain immigration benefits.

As you may know, thousands of applicants are facing name checks delays by the FBI and other agencies. In many cases for no reason what so ever. Now USCIS is issuing this revised policy to align all agencies background checks with those of USCIS.

Under the new policy, applications that are otherwise approvable and the FBI name check has been pending for more than 180 days, the officer must approve the I-485, I-601, I-687 and proceed with Card issuance. So in other words, if the case is good and the FBI is the only reason for the delay after 6 months of delay, USCIS must issue the card. This doesn't apply to pending Citizenship N400 cases at this time for some reason.

We will keep you posted with new development.

Read the internal memo here Download file

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Here is a trivia for Monday morning for you. He is at the heart of a great culture war in Texas – and the nation, credited with bringing us prosperity and blamed for abusing our resources. How should we deal with this stranger among us? Read what the Dallas news has to say about the man of the year - The Illegal Immigrant.

Immigration legal and illegal is certainly going to be the biggest issue in 2008, you will see.

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I just got the recent report from the American Immigration Lawyers Association regarding receipting processing schedule. This is the most current receipting times at CSC, NSC, TSC, VSC as of 1/4/08, and at the Chicago and Los Angeles lockboxes as of 1/14/08.

Click here to get the full report Download file

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As you may know starting January 31, 2008 all US Citizens who enter the US by land and sea ports-of-entry when arriving from Canada, Mexico, the Caribbean and Bermuda will need to present a valid passport. In addition to the regular passport, a Passport card will be available.

U.S. citizens may begin applying in advance for the new U.S. Passport Card beginning February 1, 2008, in anticipation of land border travel document requirements. Cards will be available and mailed to applicants in spring 2008.

The passport card may not be used to travel by air. It will otherwise carry the rights and privileges of the U.S. passport book and will be adjudicated to the exact same standards. The Department of State is issuing this passport card in response to the needs of border resident communities for a less expensive and more portable alternative to the traditional passport book. The card will have the same validity period as a passport book: 10 years for an adult, five for children 15 and younger.

Read more here about the Passport Card

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The February Visa Bulletin was just released, and it is getting worse every month. Now The EB2 category for advance degree professionals will be unavailable for a while. This is how we reward the Indian engineers and high skilled professionals that come to our country and help us move forward.

It is unclear for how long the EB2 category will be unavailable for Indian nationals, but this is certainly a sad situation for thousands of applicants waiting for visa numbers to become current. So what is next? Our prediction is that it will get more difficult to immigrate, perhaps China is on the line for the March Bulletin. We will keep you posted if anything changes in this respect.

We link to the February Visa Bulletin here

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As we about to welcome 2008 and wish for the best for us and our families, millions of illegal aliens, will join the celebrations with us. Over the years this, second class America has become part of our life, just like we became part of theirs.

Ellis Cose of newsweek reports:" The percentage of immigrants (including those unlawfully present) in the United States has been creeping upward for years. At 12.6 percent, it is now higher than at any point since the mid-1920s. The number (an estimated 37.9 million) is bigger than at any previous time in history. "

As arguments about immigration heat up the campaign trail, we also ought to ask some broader questions about assimilation, about how to ensure that people, once outsiders, don't forever remain marginalized within these shores.

I guess that we shall see what 2008 has in store for us.

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It will be a sad end of the year for many pro immigration activists and immigrants (legal and illegal) in the State of Arizona. The new Employer sanctions legislation is the talk of the state for many months now. The state's new employer-sanctions law, which takes effect January 1, will cause some serious trouble to employers and immigrants. The voter-approved legislation is an attempt to lessen the economic incentive for illegal immigrants in Arizona, and to spread fear among employers thinking of hiring illegal workers.

It will be interesting to see how this law will affect the State of Arizona, as I am sure many other state will learn and implement similar legislation in the next few years. My only hope is that the conclusion will be that a comprehensive immigration reform is needed, rather than an enforcement law, this will benefit employers and the workers trying to get jobs.

Read more here... and Merry Christmas!!

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When applicants apply for visas abroad they need to pay a fee for the visa and sometimes additional fees for reciprocity. Well, the cost of such fees will increase next year so it seems.

DOS published an Interim Final Rule raising the fee charged for processing of immigrant and nonimmigrant visa applications, as well as Border Crossing Cards at consulates. The rule is effective January 1, 2008 and comments are due February 29, 2008. All applications before that date are subject to the old fee.

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