Visa Lawyer Blog

Articles Posted in Family Visas

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Welcome back to Visalaywerblog! In this blog post we share with you an interesting new piece of legislation that will have a profound impact on the visa quota system for family-based and employment sponsored immigration.

The Fairness for High Skilled Immigrants Act (S. 386) was unanimously passed by the U.S. Senate on December 2, 2020 and sent back to the House of Representatives for approval.

At its core, the bill seeks to eliminate per-country numerical limitations for employment-based immigrants and increase per-country numerical limitations for family-sponsored immigrants.

Previously, the House of Representatives had passed its own version of the bill, but it has since been amended substantially by the Senate.

Amendments were added to Sections 8 and 9 of the bill. These changes are in addition to those amendments previously introduced by Senator Grassley on H-1B visas, Senator Perdue creating a set aside for Schedule A health care professionals and their family members, and Senator Durbin’s amendments which include a delayed effective date of the bill, transition periods for EB-2 and EB-3 immigrants, early adjustment filing provisions, and an age out protection for children.

What does the December 2020 version of this bill look like?

Among its major provisions are the following.

Green card reforms:

  • The bill would phase out employment-based per county limits on green cards: The main purpose of the legislation is to treat all employment-based immigrant visa applicants on a first-come, first-served basis without regard to birthplace. Under current law, immigrants from no single birthplace can receive more than 7% of the total number of immigrant visas or green cards issued in a year unless they would otherwise go unused. The effect of this provision is that while Indians are half the skilled employer-sponsored applicants, they receive just 10 percent of those green cards and—as a result—are nearly 90 percent of the backlogged applicants.
  • The bill would provide for an 11-year phase out period: The bill’s green card changes would take effect on October 1, 2022. For the EB-2 and EB-3 categories for non-executive level employees of U.S. businesses, the bill guarantees immigrants which are not from the top two origin countries (India and China) a certain percentage of the green cards for 9 years: year 1 (30%), year 2 (25%), year 3 (20%), year 4 (15%), years 5 and 6 (10%), and years 7 through 9 (5%). No more than 25 percent of these “reserved” green cards can go to immigrants from any single country. No more than 85 percent of the other “unreserved” green cards can go to a single country (India). In addition, a minimum of 5.75% of all EB-2 or EB-3 green cards will go to immigrants from these non-top 2 countries for 9 years prioritizing spouses and minor children of immigrants already in the United States and immigrants awaiting visas abroad.

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Welcome back to Visalawerblog! We hope you had a relaxing thanksgiving weekend. In this blog post we share an important update for K visa applicants impacted by the Coronavirus proclamations.

The Department of State recently issued a statement explaining how the agency will comply with a preliminary injunction issued by a federal judge in the case Daniel Milligan, et al., v. Michael Pompeo et al.

In that case a federal judge issued a preliminary injunction prohibiting the Department of States from relying on the Coronavirus proclamations to suspend K visa adjudications for those residing in the Schengen countries, the United Kingdom, Ireland, China, Iran, and Brazil.

Unfortunately, the judge stopped short of issuing a broad injunction to lift the ban on entry to the United States for K visa applicants impacted by these proclamations.

This means that while the government must proceed with K visa processing, once a K visa has been issued, applicants residing within an impacted area remain barred from entering the United States unless they meet a national interest exception.

To put it simply – the injunction simply stops the government from refusing to process K visas based on the Coronavirus proclamations. It does not allow K visa applicants from impacted areas to enter the United States once K visas have been issued unless the applicant meets a national interest exception. According to the judge, the government may still prevent entry to such applicants as deemed necessary during the pandemic.

What are the Coronavirus proclamations?

Back in January the President began issuing a series of Coronavirus proclamations that restrict and suspend the entry of immigrants and nonimmigrants, who were physically present within Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

These Coronavirus proclamations are as follows:

  • China Visa Ban – Proclamation 9984 issued January 21, 2020 – No termination date
  • Iran Visa Ban –Proclamation 9992 issued February 29, 2020 –No termination date
  • European Schengen Area Visa Ban—Proclamation 9993 issued March 11, 2020—No termination date
  • Ireland and UK Visa Ban –Proclamation 9996 issued March 14, 2020 –No termination date
  • Brazil Visa Ban—Proclamation 10041 issued May 25, 2020 –No termination date

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Happy Friday! Welcome back to Visalawyerblog! In this blog post, we bring you a recent success story and share with you how our office was able to expedite our client’s fiancé visa to help her reunite with her U.S. Citizen fiancé despite being subject to Presidential Proclamation 9993 also known as the “Schengen” visa ban.

We recognize that these are truly challenging times in the world of immigration and would like our readers to know that they are not alone. For many, there are alternatives and solutions that can be explored by our knowledgeable immigration attorneys to help them reunite with their family members. From our staff members to our attorneys, we are with you every step of the way on your immigration journey.

For a comprehensive consultation to discuss solutions to your immigration issues, you may contact us at 619-819-9204.

Overview of the Schengen Ban

To understand our client’s situation let’s first discuss the Schengen visa ban. Beginning in January of 2020, President Trump issued a series of Coronavirus proclamations to combat the rapid spread of Coronavirus cases in the United States.

Specifically, the President signed “Proclamation 9993,” into law on March 11, 2020, which restricts and suspends the entry into the United States of immigrants and nonimmigrants, who were physically present within the Schengen Area, during the 14-day period preceding their entry or attempted entry into the United States.

As a result of P.P. 9993, U.S. Consulates and Embassies around the world have refused to issue visas for those residing in the Schengen area including K fiancé visas until further notice. There is unfortunately no termination date for PP 9993 which means that visa applicants residing in the Schengen area will be stuck in “limbo” at least for the time being.

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Welcome back to Visalawyerblog! We kick off the start of the weekend with some exciting news for K-1 visa petitioners and their foreign fiancés. Yesterday, November 19, 2020, a federal judge from the U.S. District Court for the District of Columbia issued a decision finding that the government acted unlawfully in suspending visa issuance for K visa beneficiaries subject to the Coronavirus Presidential Proclamations. See Daniel Milligan, et al., v. Michael Pompeo et al.

The plaintiffs in this case – 153 U.S. Citizens and their foreign fiancés – brought suit against the United States government challenging a series of Coronavirus proclamations passed by President Trump that prohibit certain foreign fiancés from receiving their K-1 visas and entering the United States. Such K visa applicants who have been impacted by these Coronavirus Proclamations include those who have been physically present in the Schengen countries, the United Kingdom, Ireland, China, Brazil, and Iran, within the 14-day period preceding their entry or attempted entry to the United States. As you may be aware, U.S. Consulates and Embassies worldwide have refused to process visas for this class of immigrants because of these Coronavirus proclamations. The issue has now been settled – the government may not stop visa processing simply because these individuals are subject to these proclamations.

The plaintiffs in the lawsuit also include couples who have been kept apart during the Coronavirus pandemic due to the State Department’s protracted delays in visa processing and Consular refusal to schedule visa interviews worldwide due to the pandemic.

Plaintiffs Arguments 

In their suit, the plaintiffs requested a preliminary injunction to immediately stop the State Department’s visa processing suspension based on two arguments (1) the State Department has unreasonably delayed visa processing for K visa applicants not subject to the COVID proclamations and (2) the State Department has unlawfully stopped visa processing for K visa applicants subject to the COVID proclamations.

Since the start of the pandemic, the majority of K visa applications have been stuck at the National Visa Center awaiting transfer to the Embassy or Consulate for visa scheduling. Still others have completed the interview process and have been awaiting K visa issuance for months on end with no reassurance from the Consulate regarding visa issuance in the near future.

The central issue for the court to resolve was whether the plaintiffs in the case met their burden of proof to demonstrate a likelihood of success with respect to their arguments.

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Welcome back to Visalawerblog! In this post, we discuss the newly released visa bulletin for November 2020 which outlines the availability of immigrant visa numbers for family-sponsored and employment-based preference categories.

Impact of April 22nd Presidential Proclamation

As a preliminary matter, we would like to remind our readers that presidential proclamation 10014 signed into law on April 22, 2020, temporarily suspends the entry and issuance of immigrant visas at U.S. Consulates and Embassies worldwide for the following types of immigrants until December 31, 2020.

*Note: Applicants residing in the United States are unaffected by P.P. 10014 and may apply for adjustment of status with USCIS provided their priority date is current on the visa bulletin.

  • Spouses and children of green card holders (US citizens are not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (over 21 years of age) of US citizens applying at the consulate (children under 21 years of age of US citizens are not affected)
  • Sons and daughters (over 21 years of age) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB2 employment based (NIW is not affected) and their family applying at the consulate
  • PERM EB3 employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate

Unfortunately, this proclamation applies to the majority of family-sponsored preference categories which means that U.S. Consulates and Embassies worldwide will not issue visas to these individuals until the visa ban is lifted after December 31, 2020.

It is possible that President Trump may choose to extend the proclamation beyond December 31, 2020 if he finds it necessary. However it is unlikely to remain in effect after Joe Biden becomes President on January 20, 2021.

Suspension of Routine Visa Services Continues

As an additional note, although spouses and minor children of U.S. Citizens applying for immigrant visas at the Consulate are not impacted by P.P. 10014, the majority of Consulates and Embassies nationwide have suspended routine visa services until further notice. Applicants with emergencies or urgent travel needs may request expedited visa processing with the National Visa Center. We strongly encourage applicants to obtain legal assistance to help expedite visa interviews where the applicant can demonstrate extreme hardship to the U.S. Citizen relative.

Other Visa Bans May Apply 

Certain immigrant visa applicants who are not impacted by P.P. 10014, may still be impacted by other presidential proclamations restricting visa issuance and travel to the United States.

For instance, beginning January 2020 the President issues a series of Coronavirus proclamations, which similarly restrict and suspend the entry into the United States, of immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand-new week with an important court ruling, decided today, that invalidates the Department of Homeland Security’s (DHS) final rule entitled “Inadmissibility on Public Charge Grounds,” also known as “the public charge,” rule. With this new ruling, the public charge rule has been officially set-aside effective immediately.

As you may recall since October of 2019 the state of Illinois has been involved in a contentious legal battle with DHS over the legality of the public charge rule. In October of last year, a federal court granted residents of Illinois a preliminary injunction temporarily stopping the government from enforcing the public charge rule on its residents. The government thereafter appealed the decision and filed a motion to dismiss Illinois’ lawsuit which was promptly denied.

The Seventh Circuit court later affirmed the issuance of the preliminary injunction holding that the public charge rule was substantively and procedurally invalid under the APA, and the issuance of the injunction was appropriate to stop the government from enforcing the rule.

With the support of the Seventh Circuit, the plaintiffs filed a motion to vacate or “set aside” the public charge rule once and for all in the United States District Court for the Northern District of Illinois. See Cook County Illinois et al. v. Chad Wolf et al.

Today, November 2, 2020, federal judge Gary Feinerman ruled in favor of the plaintiffs vacating the public charge rule effective immediately.

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Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.

Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.

The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.

The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.

The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.

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The Coronavirus pandemic has created new obstacles and challenges for immigrants applying for visas at U.S. Consulates and Embassies worldwide. Since the Department of State first announced the phased resumption of routine visa services on July 14, 2020, applicants were thrown into a state of chaos and confusion.

Global conditions have only moderately improved in some regions, while in others they have worsened. This has caused the majority of U.S. Embassies and Consulates to remain shuttered to the general public. As it stands, very few Consular posts and Embassies have resumed scheduling of visa interviews. In the vast majority of cases, posts are only scheduling interviews and issuing visas for those with emergencies and those who qualify for expedited visa issuance.

Unfortunately, there is no specific date for when each mission will resume routine visa services, nor when there will be a sense of normalcy in the operations of U.S. Consulates and Embassies.

Our office has determined that one of the few ways to break through this state of limbo is to submit an expedite request with the National Visa Center. However not everyone will qualify to submit an expedited visa request.

Why aren’t spousal visas cases moving forward?

In normal circumstances once the spouse of a U.S. Citizen is documentarily qualified by the National Visa Center, the file is forwarded to the U.S. Embassy or Consulate near the foreign spouse and prepared for interview scheduling. The NVC is an important agency because it acts as an intermediary to prepare a case for the eventual interview stage.

Since March of this year, files have not been able to move past the NVC stage and have remained with the agency in a sort of “limbo,” given that the majority of U.S. Consulates and Embassies are not opening visa interview slots for applicants until further notice.

As a result, NVC has accumulated a large number of spousal visa cases that are unable to proceed until more Consular posts begin to open their calendars.

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Welcome back to Visalawyerblog! In this blog post, we celebrate a client’s recent success story and share with you how our office was able to expedite our client’s immigrant visa (CR-1) to help him reunite with his U.S Citizen spouse in the United States.

We recognize that these are truly challenging times in the world of immigration and would like our readers to know that they are not alone. For many, there are alternatives and solutions that can be explored by our knowledgeable immigration attorneys to help them reunite with their family members. From our staff members to our attorneys, we are with you every step of the way on your immigration journey.

For a comprehensive consultation to discuss solutions to your immigration issues, you may contact us at 619-819-9204. 

Suspension of Routine Visa Services Continues at Most Consulates Worldwide

As our readers will know, the ongoing coronavirus pandemic has made it extremely difficult for immigrants residing abroad to secure appointments for visa interviews at U.S. Consular posts and Embassies worldwide.

While some Consulates and U.S. Embassies have resumed routine visa services, these are very few and far in between. At the moment, routine visa services are only available on a “post-by-post” basis as individual country conditions permit operations to return to normalcy. For the most part, Consulates and Embassies have not been able to provide specific dates regarding when each post will completely resume routine visa services. This has left many immigrants in a state of uncertainty during what is already a very difficult time in our history. Many family members remain apart for extended periods of time with no end in sight.

Despite these limitations however, Consulates and Embassies are continuing to accommodate emergency and expedite requests for applicants with urgent matters who need to travel immediately. Where an applicant has been documentarily qualified by the National Visa Center, a U.S. Citizen petitioner may submit a request with the NVC to expedite the consular interview based on extreme hardship to the U.S. Citizen. Extreme hardship to a U.S. Citizen spouse can be demonstrated in several ways including where the USC is suffering from a disability or severe medical and/or psychological condition.

Our Client’s Situation

Amid this backdrop, our client came to us in a state of desperation. Our client had petitioned to immigrate her husband to the United States under the CR-1 category. The good? Her husband was already documentarily qualified by the NVC. The problem? Unfortunately the U.S. Embassy in Islamabad, Pakistan refused to grant him an interview due to the general suspension of routine visa services.

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Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand new week with very exciting news.

We are happy to report that on October 1, 2020, Congress passed H.R. 8337, an appropriations bill that will expand the availability of premium processing service provided by the United States Citizenship and Immigration Services (USCIS) to a larger pool of applicants for immigration benefits.

The legislation calls for expansion of premium processing to most employment-based immigration applications and potentially all USCIS benefits. This move could prove enormously beneficial especially during the Coronavirus pandemic to help move cases along more quickly than ever before. Applicants who request an employment authorization document (EAD) for example can seek premium processing service along with their applications, allowing for EADs to be issued within 15 calendar days.

During this pandemic, the processing of EAD applications has slowed significantly with most taking at least 7 months or longer to be issued. This new legislation will dramatically improve processing times for those that are willing to pay for premium processing service.

Before H.R. 8337, USCIS allowed certain employment-based petitioners to request premium processing service for E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket L-1), O-1, O-2, P-1, P-2, P-3, Q-1, R-1, TN-1 and TN-2 applications for a fee of $1,440 with guaranteed processing of applications within 15 calendar days. For immigrant petitions, premium processing was available, with certain exceptions, for the employment-based first, second and third preferences (EB-1, EB-2 and EB-3).

What types of petitions will benefit from the expansion of premium processing service?

The new legislation will now allow premium processing service for:

(A) employment-based nonimmigrant petitions and associated applications for dependents of the beneficiaries of such petitions;

(B) employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), or (3) of section 203(b); [the first three employment-based preferences]

(C) applications to change or extend nonimmigrant status;

(D) applications for employment authorization; and

(E) any other immigration benefit type that the Secretary deems appropriate for premium processing.

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