Visa Lawyer Blog

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Great news to report about Visa Waiver Overstays and Adjustment of Status. USCIS has finally issued policy guidance on adjudication of adjustment of status (green card) applications filed by individuals admitted under the Visa Waiver Program (VWP). Until now, USCIS offices throughout the country have been inconsistent in adjudication of visa waiver overstay adjustment of status applications with some offices consistently granting adjustment of status and with the others outright denying such applications in the exercise of discretion without consideration of the equities and without providing any reasons for the denial. Our last update on this subject was from January 2012 and it left the subject very unclear.

The guidance issued by USCIS on November 14, 2013 is binding on all USCIS offices and is designed to ensure consistency in adjudication of VWP adjustment applications throughout the country. The following is a summary of the new guidance as prepared by Attorney Ekaterina Powell from our office.

What is Visa Waiver Program

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On November 15, 2013, a new policy was issued to allow undocumented spouses, children, and parents of active duty and former members of the U.S. armed forces, the selected reserve of the ready reserve, to enter or continue staying in the U.S. after approval of parole request.

The purpose of the new policy is to relief the stress and anxiety of active members of the U.S. armed forces and individuals serving in the selected reserve of the ready reserve and veterans because of the immigration status of their family members in the U.S.

The first issue addressed in the Policy Memorandum (PM) is whether parole in place should be granted to certain family members of active duty members of the U.S. military troops and veterans. The answer is yes. However, counsel needs to point out here that although immediate relatives of active military troops and veterans are allowed to make parole request, the decision whether to grant parole is discretionary. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, weighs heavily in favor of parole in place. Criminal records or other serious adverse factors will also be part of the discretion for such an individual.

The other issue addressed in the PM is what the effects of parole are. The new policy will allow those undocumented family members to qualify for green cards through adjustment of status. Normally, to do adjustment of status, the person needs to be legally admitted in the first place. The new policy overcomes this requirement for those immediate family members of the U.S. military troops and veterans who entered without inspection and do not possess legal status. The alien must still satisfy all other requirements of a change of status though.

Once parole is granted, the undocumented alien is eligible to apply for an employment authorization document or EAD, which would allow them to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required.

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Recently, US Consulates are reportedly increasing their scrutiny of H-1B visa applications with respect to the wage rates paid to H-1B workers. Before a H-1B worker may apply for a H-1B visa, his or her US employer obtain a certified labour condition application (LCA) from the Department of Labor before filing a petition with USCIS. The certified LCA lists the wage rate that the employer promises to pay the H-1B worker in the United States. This wage rate is based on the wage level selected by the US employer on the LCA, and is based on the complexity of the job duties and the amount of education and experience that is required to perform those duties. The Department of Labor issued guidance in 2009 that defines each of the four wage levels that US employers may select.

The four wage levels are based on the level of experience the H-1B worker has and the complexities of the job duties for the H-1B worker. For instance, the first level is the “entry” level position concerns those employees who perform routine tasks that require limited, if any, exercise of judgement. The tasks provide experience and familiarity with the employer’s methods, practices and programs. These employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and expected results. Their work is closely monitored and reviewed for accuracy.

On the other end of the wage level spectrum is the Level 4 (Fully Competent) H-1B worker. These workers are for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgement and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgement and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

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The United States has traditionally been viewed as one of the most emigrated-to countries in the world. A nation of immigrants in its own right, the federal government has long been tasked with developing an immigration policy that balances the benefits of foreign human capital with the drawbacks of increased competition for local jobs. Today, the lexicon of the economics of immigration is one of start-ups; federal immigration policy seeks to create incentives for talented and skilled foreigners to contribute to the U.S. economy through the creation and facilitation of startups. That said, there are a number of problems facing the U.S. immigration system that have threatened this overall goal.

Causes for Concern

While the policies implemented by the U.S. Citizenship and Immigration Service (USCIS) are relatively sound in their purpose and overall trajectory, there are a number of procedural hurtles facing the immigration system today. Studies have shown dramatic increases in visa denials to employees with specialized knowledge, and in particular, Indian nationals are facing the highest increase in the rate of denials. Even where visa’s are not actually denied, there are less burdensome but nevertheless taxing hurdles for many immigrants with specialized skills; USCIS authorities have increasingly required applicants with special knowledge to provide additional information supporting their petitions in 63% of cases in 2011, as opposed to 17% in 2007. Finally, there is an enormous delay in processing of visa applications; for example, the EB2 visa applications for Indian nationals currently being reviewed date back to 2004, and biannual government shutdowns have only exacerbated the problem.

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In June, same-sex marriages resumed in California after the state’s ban on it back in May 2008. The new decision made it possible for local government to issue marriage certificates for same-sex couples. Its effect on immigration law has also been revolutionary, because U.S. citizens can now petition for his or her same-sex spouses. Recently, our office has successfully assisted with a handful of same-sex couples with their marriage interview, and we would like to share our experience with all those who are still on the way.

Since same-sex marriage interviews are relatively new to immigration officials as well, many clients came to us with tensions and nervous. One of the reasons is that they don’t know how their interviews will be different from those opposite-sex couples, whether higher level of scrutiny will be applied, and what questions to expect. This article will brief the same-sex marriage interviews and provide you tips to success based on our professional experience.

First and foremost, always be on time for your immigration marriage interview. We always suggest our client to arrive at least 15-20 minutes before the scheduled interview time, to leave enough time for security check before entering the federal building and for check-in at the field office front window. USCIS officers expect you to be on time and it is important to leave a good impression before the conversation starts. If you have an attorney to accompany you, it is very important that you begin the interview only when your attorney is present. Another reason we want our clients to arrive a little earlier is that we will go over the entire process one more time with clients, let them know what to expect in the interview so they will walk in calmly and confidently, and make sure all documents, originals and photocopies, are all there and well organized.

Second, dress formally and conservatively. It takes less than 3 seconds to leave an impression. So you definitely would like to give a good impression to the adjudicating officer who will be interviewing you, because the way you dress is the first thing that an officer will see. For men, we suggest you at least business casual attire. For women, business casual will also be fine.

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Infosys Limited, an Indian company involved in consulting, technology and outsourcing, has agreed to a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes, and also agreed to enhanced corporate compliance measures. The $34 million payment made by Infosys as a result of these allegations represents
the largest payment ever levied in an immigration case.

Infosys is located in 30 countries and in 17 U.S. cities, including a location in Plano, Texas. The Plano location is responsible for handling the immigration practices and procedures for U.S. operations of Infosys. Infosys brings foreign nationals into the United States to perform work and fulfill contracts with its customers under two visa classification programs relevant to this matter, H- 1B and B-1.

The H-1B visa is a strictly regulated visa program that protects the American worker from unfair competition from overseas countries that have drastically lower labor wages. The H-1B visa allows employers to temporarily employ foreign nationals needed for certain specialty occupations. The H1-B visa also protects foreign workers and mandates that they must be paid fair wages while working in the United States. H-1B visas are limited by congress to 65,000 visas nationally per year.

However, there is no limit to B-1 visitors. And the B-1 visa program only allows foreign nationals to temporarily enter the United States, for conferences, seminars, and other limited business endeavors. B-1 visa holders are not authorized to work in the United States. Infosys unlawfully and fraudulently used B-1 visa visitors as though they were H-1B workers in violation of U.S. immigration law.

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Back in 2011, the Department of Homeland Security had instructed ICE enforcement agents to refrain from detaining individuals at sensitive locations. This 2011 memo required ICE agents to have prior approval before going to certain “sensitive locations”, including schools, churches, and hospitals. The list did not include courthouses among its list of sensitive locations. Recently, ICE has been making arrests at courthouses in and around the Bakersfield area.

The ACLU reported on the recent arrests made by ICE at the Kern County courthouses and noted that “ICE agents have repeatedly raided Kern County courthouses in recent years, rounding up residents waiting to pay fines, appear in court, get married, and even – in one case reported to the ACLU – get a domestic violence restraining order. ICE’s tactics are in tension with their own written policies, which state they will not conduct enforcement actions at “sensitive” locations. Ironically, the raids have kept people from paying tickets and attending court.”

In response to these arrests at courthouses, the ACLU wrote directly to ICE to address what they feel is a location that should be added to the “sensitive locations” list that was in the 2011 memo. The rationale for this is pretty clear, it is in the public interest for individuals that have court matters to be able to go to court without fearing being detained by ICE. Those with minor traffic offenses, seeking court orders for domestic violence matters and temporary restraining orders will be deterred from going to court if they fear being detained.

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Back in June, the U.S. Supreme Court decided the DOMA case that granted same-sex couples federal benefits in states that recognize same-sex marriages. This decision also had a far-reaching effect on immigration laws that allows for same-sex couples to remain together in the U.S. by petitioning for their spouses. Our office recently had some immigration interviews for these marriage cases, which was new for our attorneys and for the immigration officers who must handle these types of cases.

When it comes to a marriage interview, the interviewing officer asks questions to determine the bona fides of the marriage. Some of these questions concern relationships with family members to see how involved the families of the petitioner and beneficiary are in the lives of the couple there at the interview. This notion does not necessarily apply when it concerns a same-sex relationship, since the families of the couple may not approve of the relationship. For some cultures, because it is wrong to be in a same-sex marriage and is constantly disapproved, leaving the couple alienated from their families. In this context, it is interesting for our clients when they are faced with questions from the officer regarding family relationships.

For one of our interviews, the immigration officer was presented with correspondences between the couple where one of them was referred to by a female name because they were pretending to their family to have a girlfriend when they had a boyfriend. This sort of difference would be a concern for the immigration officer in the past, but because of the sensitivity that same-sex couples face with having to address this issue with their families, the officer understood the circumstances and accepted those reasons while accepting the correspondences as genuine between the couple.

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USCIS confirmed on October 23, 2013 that change of employment location within the same MSA does not require an amended H-1B petition. This is an important clarification from USCIS’ position on the issue was unclear.

Under USCIS regulations, amended H-1B petition is required if there is a material change in employment terms. However, there has been inconsistency in USCIS’ treatment of the changes in job location. While past USCIS guidance (Efren Hernandez letter, October 23, 2003) suggested that location changes, without any other changes in the employment relationship, do not constitute “material changes,” as a practical matter, USCIS has often denied H-1B petitions when during FDNS inspections the beneficiary could not be found at the job location that was provided to USCIS with the H-1B petition. USCIS, contrary to its own guidance, insisted that an amended H-1B had to be filed whenever the place of employment changes. This presented significant challenges to many employers who move offices within the same Metropolitan Statistical Area or who place employees at another job location not anticipated at the time of filing of H-1B petition. For employers who have a significant H-1B workforce that means thousands of dollars in USCIS filing fees.

The policies of USCIS and DOL seemed contradictory when it came to changes in job locations within the normal commuting distance of the place of employment. Under the DOL’s regulations, no new LCA is required to be filed if the employee moves within the “area of intended employment,” which is the area within a normal commuting distance of the place of employment. The normal commuting distance is not defined and has to be analyzed on a case by case basis. Normally, moves within the same Metropolitan Statistical Area (MSA) are considered to be within the normal commuting distance. Thus, any moves in job location within the same MSA generally do not require filing of a new LCA.

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When an applicant is facing the deadline to remove the conditions of his or her lawful permanent residency status, and the marriage on which the initial I-130 petition and conditional residence were based is on life support, deciding how and when to file the Form I-751 Petition to Remove the Conditions of Residence requires careful planning. The following provides a summary of the I-751 available waivers.

Differences Between Jointly-Filed Petitions and Waivers

There are some key differences between I-751 Petitions filed jointly and those filed under one of the waiver provisions. If a conditional permanent resident (CPR) is filing an I-751 Petition jointly, with the petitioning spouse, and files after the expiration date of the LPR card, he or she will need to include an explanation of the late-filing with the I-751 Petition. However, if filing under one of the waiver grounds, the CPR does not need to provide such an explanation. A waiver can be filed prior to or after the expiration of the LPR card up until the date an immigration judge issues a final order of removal.

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