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Important Updates from AILA California Chapter Conference November 13-15, 2014

The 27th AILA (American Immigration Lawyer Association) California Chapter Conference was held between the 13th and 15th of November 2014 at San Jose, California. Attorney Yingei Zhou, Esq. was in attendance on behalf of our law firm. The conference concentrated on several trending topics such as status of comprehensive immigration reform, consular processing and updates with border posts in Mexico and Canada, driver’s licenses for undocumented workers, unaccompanied alien children (UAC), H-1B/L-1A/O-1/EB-1 adjudications, federal litigation, and advanced family immigration issues, as well as staple subjects like evidentiary issues in removal proceedings and PERM applications.

This article provides you several important updates from the conference addressed at the conference, especially the government open forums with AILA practitioners, USCIS representatives, CBP officers, and San Francisco Asylum officers.

In the following weeks, we will post more articles to address the trends on each specific visa applications and immigration proceedings discussed in the conference.

California AB 60: Driver’s Licenses for Undocumented Workers

Starting from January 2015, undocumented workers will have their first opportunity to obtain California driver’s licenses thanks to the passage of Assembly Bill 60 by the state legislature on September 12, 2013. Applicants can now make an appointment online here to visit a DMV office beginning January 2, 2015.

To apply, undocumented workers need to bring proof of identity (such as government issued I.D., valid foreign passport and proof of California residency. For a complete list of documents to prove California residency and approved foreign passports, please click here.

AILA representative mentioned that the driver’s licenses issued to those undocumented workers will look differently from the regular ones, and there will be a note “Federal Limits Apply” on the card. Undocumented workers can use the license to identify themselves in front of the police, but cannot be used to book a flight. AILA practitioner raised questions asking to specify whether undocumented workers are prevented from booking any domestic flights or just the international flights. However, no clear answer was given at the conference. Any updates on this issue, we will keep you posted.

Also, according to the panelists, undocumented teenagers can apply too, as they don’t see any law preventing those from applying.

Unaccompanied Alien Children (UAC)

Currently, courts are overwhelmed by the flood of Unaccompanied Alien Children. San Antoniao, for example, is experiencing an 18-month delay in case processing. U.S. Customs and Border Protection data show more than 85,000 total apprehensions of unaccompanied alien children during fiscal year 2013 and fiscal year 2014 through June. However, more than half of the unaccompanied alien children apprehended at the southwest border by Border Patrol still do not have their Notices to Appear (NTA) filed with court by the government, due to the large number of children apprehended at the border. A lot of kids don’t even have their information put in the computer before a case can be created and show up in the system. It there is no NTA filed, the federal court does not even know the status of the case. VTA is the document the Department of Homeland Security uses to charge an illegal immigrant with being removable from the United States.

For the asylum procedures at the borders and POEs for juveniles from Mexico and Central America, Polly Webber, Immigration Judge presiding at San Francisco and Emilia M. Bardini, Director at San Francisco Asylum Office, suggested that individuals can file directly with the San Francisco asylum office. If the asylum is granted by the asylum office, then the individual does not need to go to court. If not, then a full hearing will be scheduled at immigration court.

Officers suggested that siblings can schedule together. The San Francisco asylum office has expressed its willingness to work with the kids and the scheduling.

California Attorney Fee Regulations Updates

Since 2013, the California State Legislature has been planning to protect its residents from immigration fraud, by passing the AB 1159. The bill would require attorneys providing immigration reform act services in California to put all funds received form a client in an attorney trust account, and only withdraw these funds when the services have been completed.

According to the panelists, this bill has been dropped for now. But the panelists think that it might possibly come back the next year.

Consular Processing and Updates with Border Posts in Mexico and Canada

Stacy L. Saravia, Consular Officer at Tijuana, Mexico and Nancy Biasi, Consular Chief at U.S. Consulate General, Vancouver, Canada communicated to AILA members on consular processing updates.

In Canada, the administrative processing currently takes about 60 days. Individuals are suggested to allow at least 60 days before following up. Officer Biasi also acknowledged the problem that different ports of entry in Canada have different levels of scrutiny in adjudicating TN applications. Officer Biasi specially mentioned the Pearson airport in Toronto which has been voted as one of the most difficult ports for TN admissions. AILA members expressed their concerns that even within the same port, results are sometimes vary depend on the adjudicating CBP officers. Officer Biasi advised to seek supervisor review at the port immediately for TN rejections. She also advised applicants to “forum shop” before deciding which port of apply at.

Secondary inspection was another issue brought up. However, no specific or clear guidance was provided and the CBP officer considers this as a case-by-case determination.

In Mexico, Officer Saravia talked about the importance to review the U.S. consulate’s website for the proper procedures for obtaining visas. For example, in the past, some consulates have provided procedures for an applicant to send the TN visa packet in prior to interview. However, this is no longer the policy. Also, the visa reciprocity schedule still limits the amount of time for a U.S. visa to 12 months. However, upon request an applicant’s employer can ask that the visa be annotated with a three year request so that the person is admitted for durations of three years upon entry instead of 12 months per the via.

Also, all E visa adjudications are now being processed at the posts in Mexico DF, Monterrey, and Tijuana, so an applicant should select one of those three locations when applying. If an applicant is scheduled for biometrics at an ASC in Mexico City, Tijuana or Monterrey, the person should submit their E visa packet with supporting documents for the consular interview at that time and an interview will be scheduled for the visa interview. If the applicant is going to an ASC at any other post then they should mail the E visa packet directly to the consulate at least 15 days prior to their interview.

An interview is not automatically required now for E visa renewals so an applicant may be able to submit documents at the ASC and the visa sent by DHL. For those renewing an E visa, if the Embassy or consulate has taken your ten-print fingerprint scan after 2008, you will not need to come to the ASC. A representative may drop off your supporting documents at the ASC on the day of your appointment.

For E-2 dependents, they need to bring the principal applicant’s complete E-2 case file to their interview. Canada does not require principal applicant’s complete E-2 case file at dependent’s E-2 visa interview, however, you do need to bring relationship documents and a copy of the principal applicant’s E-2 visa page and I-94.

For third country nationals, if they have ever over stayed beyond the period of time authorized on his I-94 card, his current visa will be voided and he will be required to apply for all future visas in his home country. The U.S. consulates in Mexico or Canada have a detailed list of which third country nationals living in the U.S. can apply for a nonimmigrant visa in Mexico. If you need our help to find out whether you are in one of the categories who may not apply in Mexico or Canada, please feel free to contact our firm.

As to specific types of visa, since Canadian citizens are visa exempt for most types of visas, admissions can be applied at the ports of entry. K and E are the only types of visa issued by U.S. consulates in Canada. L-1s can be applied at the port of entry for Canadians.

NVC No Longer Collects Original Civil Documents

Another piece of important information announced is that NVC will no longer need original civil documents or certificates, such as birth, marriage, police, military, court, death or divorce records for immigrant visa applications at non-electronic processing posts.

Please contact our office for further information.