Articles Posted in Family Visas

We have been following the Visa Waiver Adjustments crisis since it started in July 2010. In a recent meeting between local AILA lawyers and the USCIS San Diego office the following question was raised by the local AILA lawyers:

USCIS Headquarters meeting on April7,2011 relating to adjustment following a Visa Waiver Overstay, AILA minutes distributed indicating ” AILA requests that USCIS immediately issue guidance to the field clarifying that an alien admitted under the Visa Waiver program may adjust status as an immediate relative notwithstanding the filing of form I-485 after the expiration of the Visa Waiver period of admission.

USCIS National Response: All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the US under the visa waiver program and overstayed on their merits, UNLESS, the potential beneficiary is the subject of INA section 217 removal (deportation) order. Additionally filed office have been instructed to hold in abeyance all visa waiver adjustment applications for potential beneficiaries who have been ordered removed under section 217 INA. We are drafting final guidance including an AFM (Adjudicator Field Manual) update on this topic we expect to issue soon.”

Eric Holder vacated the BIA’s order and remanded the matter to the BIA to determine whether and how the constitutionality of the Defense of Marriage Act impacts respondent’s eligibility for cancellation of removal, see Matter of Dorman.

DOJ Secretary Eric Holder announced that he has vacated — or essentially wiped out — a decision by the Board of Immigration Appeals in reference to a recent case in which the BIA applied DOMA’s Section 3. In his decision, Holder listed the criteria the BIA should consider:

1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law;

The Labor Department just announced protocols for certifying U visa applications, and that the U visa certification process will be handled by the Wage and Hour Division’s regional administrators.

What is a U Visa

The Victims of Trafficking and Violence Protection Act of 2000 created two new nonimmigrant visas for noncitizen victims of crimes, the T visa and the U visa. Both visas are designed to provide immigration status to noncitizens who are assisting or are willing to assist authorities investigating crimes.

Drug convictions and Immigration Laws are very complicated and require careful analysis. The good news is that a person cannot be deported from the U.S. for Possession of Marijuana as long as the amount does not exceed 30 grams. However, a conviction for any other type of marijuana offense other than simple possession of 30 grams or less requires mandatory deportation.

INA § 237(a)(2)(B)(i) provides as follows:

Any alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable.

Many readers were emailing us for an update on the Visa Waiver overstay saga. Here is the latest: Our Lawyer’s Association and all fellow attorneys are concerned that USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217.

Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district here in San Diego continues to deny such cases.

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397

On August 18, 2010 we were the first to report the new trend coming from some local Immigration offices, mainly San Diego, regarding Visa Waiver overstay Issues. Click here to read the post as well as the Adjustment of Status denial we posted that same week.

We are happy to report that we were able to overturn the Appeal denial of that same case a few weeks ago, making this one of the only visa waivers approvals since this new policy started in July. While this is a small victory for us and our clients, the Visa Waiver overstay denial policy still continues in San Diego at this time.

Due to some of publicity efforts, National Public Radio and KPBS covered this story this morning, click here to listen online.

We has learned that the USCIS hold on adjudication of cases involving same-sex partners has been lifted. An announcement by immigration officials in Washington on Monday that they were delaying decisions on some immigration cases involving gay couples led to a surge of expectations among gay advocates that the Obama administration had taken a small but significant step toward recognizing same-sex marriage.

But now, immigration officials moved swiftly to clarify their position and dampen those hopes, saying they have not made any policy changes that would provide an opening to gay couples. The episode added to the legal confusion that has followed the administration’s determination last month that the law that bars the federal government from recognizing gay marriages, the Defense of Marriage Act, is unconstitutional.

According to Immigration Equality Memo released today, until DOMA is repealed or until there is a final court decision, it is the obligation of the Executive branch to comply with and enforce the law.  Recent statements by DHS re‐iterate this enforcement message; therefore, if a USC or LPR files an I‐130 immigrant visa petition on behalf of his or her partner, it will be denied.   

UPDATE:

Facing GOP objections, Democrats are putting aside the Dream Act. They’re short of the 60 votes needed to advance the measure.

Democratic officials say they’ll to move the House-passed version after the Senate acts on funding the government and extending tax cuts. Republicans have said they won’t agree to consider anything else until those issues are addressed.

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Last night’s House passage of DREAM (216-198) brings us closer than we have ever been to victory! This morning we urge our readers to make final calls to all Senators to urge them to vote for cloture on DREAM.

The Senate is scheduled to vote at 11am and will need 60 votes to win.

The House victory has changed the tone on DREAM and gives our Senators a greater sense of urgency that their individual votes will be the deciding ones for a historic victory on immigration. EVERY VOTE counts so make your final calls now.

Last night DREAM triumphed over partisanship and won the votes of 8 House Republicans and many conservative Democrats. To make DREAM possible, the Senate leadership made the unprecedented move of delaying their voting until today.

The momentum is building on DREAM. Make your calls now so we can get this passed.

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Here is a quick update from the field. Processing waiver applications is the main work of the USCIS office at the consulate. Naturally, the consulate makes an initial determination of inadmissibility. If the applicant is eligible to submit a waiver, he or she is instructed to phone the Teletech Call Center beginning the following day to schedule a time and date for dropping off the waiver application.

As of early November, applicants who phone the Call Center are receiving appointments in early January, indicating a two-month wait (until recently the consulate was averaging 4-6 week delay). Due to a transition to a new contract, the Call Center is currently unable to provide “on the spot” confirmation of the appointment, but the agents will take down the caller’s information and respond via email or phone when an appointment is available.

On that date, the applicant will be briefly questioned by a consular employee, pay the waiver application fee, and drop off the packet. The waiver application and supporting documents will be passed directly to the USCIS officer, except for medical waivers, which need CDC notice and sign-off by qualifying relative.

Below is a summary of the December 2010 Visa Bulletin with respect to employment-based petitions:

* EB-1 remains current across the board.

* EB-2 Line ( World), Mexico and Philippines remain current, EB-2 China moves forward by one (1) week to June 8, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.