Visa Lawyer Blog

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Many of our clients visiting local USCIS offices in the past week or so, notices a new system upon arrival. Beginning September 9, 2013, USCIS will employ a new verification tool called Customer Identity Verification (CIV) in its domestic field offices. Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.

CIV will enhance the integrity of the immigration system and combat identity fraud by allowing USCIS to biometrically verify a customer¿s identity. Having resolved a technical issue that delayed the original launch, the tool will now be phased in between September 9 and October 21, 2013 to customers attending an interview or being issued evidence of an immigration benefit.

How It Works:

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The Immigration-Hold policy used by ICE has been an issue for many immigrants here in the U.S. It is something used by law enforcement to hold individuals while local charges are being resolved. George Gascon, a District Attorney up in San Francisco, recently shared his views of the Immigration-Hold policy and the abuse of it by law enforcement and its consequences.

Mr. Gascon expressed his views by saying, “In my 30 years in law enforcement, I have often witnessed the unintended consequences of well-meaning but poorly developed public safety policies. Few have had as profound an impact on our constitutional rights as the widespread use of immigration holds issued by Immigration and Customs Enforcement. What the federal government touts as a sound public safety practice is having a chilling effect on local law enforcement’s effectiveness.

In 2010, Norma, an undocumented immigrant living in San Francisco, was held on an immigration hold in our local jail for days without due process. Norma, repeatedly abused by her partner, had been too fearful to call police. When she finally did, she was arrested along with her abuser, even though no charges were filed against her. While her deportation was eventually canceled, Norma recalls being “so scared not knowing what would happen to my 3-year-old child while I was in jail. I later discovered that I had an immigration hold, even though no one told me what was happening.”
As explained briefly above, Immigration Holds are requests by an ICE officer to have local authorities hold someone up to 48 hours after local charges are resolved. In addition, it requires no demonstration of probable cause, and such holds are often issued with little more than a suspicion that the individual in question doesn’t have documents. In no other aspect of law enforcement can we jail people without probable cause; the right to due process is the bedrock of the U.S. criminal justice system.

Mr. Gascon further discusses his view of the abuse of the Immigration Hold as follows, “The use of Immigration Holds has led to mistakes and abuses. These include ICE agents relying on birthplace, language or physical appearance to determine who should be detained. This has resulted in the detention of hundreds of thousands of individuals, including U.S. citizens and authorized immigrants. In fact, between October 2008 and March 2010, ICE identified 16,870 U.S. citizens through this program. ICE stopped reporting the number of U.S. citizens identified in 2010, so the total number held is unknown.

The broader implications are concerning: Police occasionally arrest crime victims such as Norma when it is unclear who the perpetrator is, such as domestic violence cases where a victim fights back in self-defense. These victims may find themselves subject to immigration holds and detained in jail because an ICE agent believes they may match the identity of someone who could be deportable.”

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So the Visa Bulletin was released yesterday. FB-2A is now listed at September 2013 and EB-2 China advanced to September 15, 2008. EB-2 India remained at June 15, 2008.

Overall the movement is very Slow, we recommend Green Card holders that are eligible to file for their Spouse and Children under 21, to do so before the End of September. Read more about the reason in this article we released last month.

Why is there as limit on Visa Numbers?

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On August 28, 2013, an application advisory on Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients was published by American Immigration Council Legal Action Center.

Based on the advisory, this article summarizes advance parole eligibility, application procedures and documentation requirements for DACA recipients.

I. Advance Parole Eligibility
Prior to applying for advance parole, an individual must apply for and receive a DACA approval. An individual is disqualified from DACA if he or she departs the United States at any time after August 15, 2012 unless he or she is first granted both DACA and advance parole. In order to receive advance parole, a DACA recipient generally must show that he or she is traveling abroad for humanitarian, employment, or educational purposes.

Humanitarian purposes relate to “travel for emergent, compelling, or sympathetic circumstances.” This category includes obtaining medical assistance, attending a funeral service for a family member, visiting a sick relative, or other urgent family-related purposes. Educational purposes include study abroad programs and academic research. Employment purposes include overseas assignments or client meetings, interviews, conferences, trainings in other countries, and travel needed to pursue a job with a foreign employer in the United States. USCIS construes the humanitarian, educational, and employment categories broadly. However, traveling abroad for vacation is not a valid purpose for advance parole.

II. Applying for Advance Parole
To apply for advance parole, a DACA recipient must submit Form I-131 to USCIS. The advance parole applicant must submit proof of DACA status – either a copy of the USCIS Notice of Action (Form I-797) showing a DACA approval or a copy of an approval order, notice or letter from U.S. Immigration and Customs Enforcement (ICE).

The filing fee is $360. In Part 4 of Form I-131, the DACA recipient must explain the purpose of the trip and the countries the applicant plans to visit. In addition, the requester must submit evidence of the purpose of the trip, the intended date(s) of travel, and the duration of the trip(s).

DACA recipients must provide as much evidence as possible to explain the purpose of intended travel abroad.

For a trip involving a humanitarian purpose, proper evidence includes but is not limited to the following:
• A letter from a medical professional explaining the reason for the need to travel abroad to obtain medical treatment;
• A letter from a hospital or treating medical professional explaining the relative’s ill condition; and/or
• A death certificate for a deceased relative.

For a trip involving an educational purpose, evidence includes but is not limited to the following:
• A letter from an educational institution explaining the purpose of travel abroad; or
• A document showing enrollment in a program or class and documents showing the applicant is required to travel for a program or class or will benefit from such travel.

For a trip involving an employment purpose, appropriate evidence includes but is not limited to the following:
• A letter from an employer explaining the need to travel abroad; and/or
• A document showing an employment need, such as a conference or training program, and showing the applicant’s participation.

A single Form I-131 may be used to request that the DACA recipient be allowed to leave and re-enter the United States multiple times. However, the recipient must show that each trip is intended to serve a humanitarian, employment, or educational purpose and explain why the
DACA recipient needs to travel multiple times.

Generally, USCIS does not grant expedited requests for advance parole for DACA recipients. However, in a dire emergency, USCIS is willing to consider an expedited request at a local USCIS office.

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Criminal Offense from the past often hunt clients in the present. This often comes up in Adjustment of Status cases. A recent new client came to me with a Criminal conviction that originated more than 20 years ago. Now he is a highly successful executive, about to file his Adjustment of Status.

How do we analyze such crimes, what is the Impact on I-485 cases today?

Enter 212(h) Waiver. The 212(h) waiver can be used for various criminal grounds of inadmissibility and has different requirements depending on the ground of inadmissibility, the date of conviction, the status of the applicant, and the concurrent application for relief (if any) for which the applicant is applying.

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Federal immigration authorities have been advised to consider familial connections when they detain undocumented immigrant parents, according to an Obama administration directive released on Friday. While the document does not prevent the deportation of undocumented parents or high-priority criminal immigrants, it does allow detained individuals to make caregiver decisions for their children. This is a big step in helping keep families together instead of splitting them apart.

The directive specifically advises immigration agents to exercise prosecutorial discretion as early as possible during an immigrant’s detention, including finding out whether detained individuals are primary caretakers. It allows for the creation of a “field point of contact” in which Immigration and Customs Enforcement (ICE) agents receive and address inquiries from both detained parents and their families. Agents are also guided to place detained parents in facilities that are within the “area of responsibility,” or somewhere closer to their children. It is clear from this directive that the care taking of U.S. citizen children remains a stronger priority than deporting the parents of U.S. citizen children who are not here legally.

A similar provision was included in the immigration bill that passed the Senate in May. That amendment, which was approved unanimously in committee, would provide detained parents the opportunity to figure out caretaker options for their children.

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Tourist Visa denials are very common in certain parts of the world. In fact, there are countries where it is virtually impossible to obtain a Visitors Visa to the United States.

Under a recent Calculation of the Adjusted Visa Refusal Rate for Tourist and Business travelers under the Guidelines of the Visa Waiver Program, released by the State Department we can learn some very Interesting Statistics.

How can Visitors Enter the US?

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Some recent guidelines have come out of USCIS regarding the processing of I-601A Provisional Waivers. New guidance has come to the consular officers related to the final rule permitting certain immediate relatives of U.S. citizens to apply to the USCIS for an I-601A Provisional Waiver of Unlawful Presence before leaving the U.S. for their immigrant visa (IV) interview. The guidelines for processing these waivers is listed below.

USCIS published a final rule permitting certain immediate relatives of U.S. citizens to apply for an I-601A provisional waiver of the unlawful presence grounds of inadmissibility before leaving the United States for their IV appointments. Under existing law, individuals who are not eligible for adjustment of status in the United States must travel abroad to obtain an immigrant visa. It is expected that the new I-601A provisional unlawful presence waiver process will shorten the time U.S. citizens are separated from eligible immediate relatives while those family members are obtaining immigrant visas.

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Several clients reported recently of strange calls received asking for money to fix incorrect immigration info. The clients were very worried since the caller ID had an official call back ID. Now we know this is a big scam. AILA reported recently that USCIS issued an alert about this fraud.

In recent weeks, U.S. Citizenship and Immigration Services (USCIS) learned of a new telephone

scam targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.

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Many clients often ask me what is considered to be a Marginal Investment for E2 visa Purposes? The marginality of a business is also one of the most common reasons why investors in smaller businesses are denied E-2 visas. For this reason, investors must pay very close attention to this factor.

In order to qualify for E-2 status, the applicant must not have invested in a marginal enterprise solely for the purpose of earning a living for him– or herself and his or her family. A marginal business is an enterprise that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. However, an enterprise that does not have the capacity to generate such income but does have a present or future capacity to make a significant economic contribution is not considered a marginal enterprise.

In other words, if the investment will indirectly expand job opportunities locally or otherwise have a positive significant impact on the local economy, the applicant may still qualify even though the income from the business may only be enough to sustain the investor and his or her family. For example, an investment that indirectly creates jobs in the local area should be able to establish that it is not a marginal business.

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