Visa Lawyer Blog

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Great tip from AILA about how alternate degree and experience requirements are stated on the ETA 9089 and how those requirements are interpreted in adjudicating I-140 EB-3 skilled worker petitions. Recently we have seen too many Requests for Evidence concerning this issue.

The situation arises most commonly where the stated minimum requirement for the position is a bachelor’s degree, but the beneficiary obtained a 3-year bachelor’s degree. In particular, where no alternative requirement is provided in H-8 on the ETA 9089, but degree equivalency language is included in H-14, Nebraska Service Center has stated that the information in H-14 appears to contradict the “no alternative requirements” indicated at H-8.

AILA advised NSC, as confirmed by BALCA, that information included in H-14 is intended clarify and not contradict information provided in the more limited checkbox format provided elsewhere in Section H. See, e.g., Matter of General Electric Co., 2011-PER-02696 (BALCA, Jan. 22, 2013);

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On May 1, 2013, the U.S. Department of State distributed Change Transmittal (CT) incorporating certain updates and clarifications into Foreign Affairs Manual (FAM). These changes have been subsequently withdrawn by the Department of State and are not yet effective. We are providing this summary to let our readers know what we can expect if the changes are eventually implemented. This summary will address the updates and clarifications of provisions regulating visa applications or unauthorized entry into the U.S. through fraud or willful misrepresentation.

I. Evidence of Fraud and Willful Misrepresentation (9 FAM 40.63 N4.8)

i) Types of evidence

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In a recent NY Times article, San Diego Mayor Bob Filner spoke about improving economic relations between Tijuana and San Diego. Mr. Filner has taken steps to make progress in improving these relations by opening up an office in Tijuana in order to work closely with businesses and the mayor’s office in Tijuana. When he opened San Diego’s Tijuana office this year, Mr. Filner spoke in grand terms about the future of cross-border relations. “Dos ciudades, pero una region — we are two cities, but one region,” he said, using the phrase popular among those who want more collaboration in the area. San Diego would put in a bid for the 2024 Summer Olympics, he said, but only to host jointly with Tijuana.

“We need to make the border the center, not the end — but the biggest problem we have is not security, it is openness and communication,” Mr. Filner said in an interview in his City Hall office. “People have to understand that the infrastructure that we need should be an important part of any discussion on immigration. The volume here is so incredible, yet nobody understands how much this matters. People can’t go back and forth, and we’re losing out.”

“The political buzz made it so that there is a self-evident truth that the border was out of control, and that national stigma remains,” said Paul Ganster, the director of the Institute for Regional Studies of the Californias at San Diego State University. “It might make people from Iowa feel better knowing that it takes hours to cross the border, but a better approach is to fix the border so it functions for legitimate purposes. Right now we’re just penalizing ourselves with huge inefficiencies.”

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The Senate Judiciary Committee is likely to pass a proposal Tuesday meant to improve information-sharing on foreign students – a direct influence of last month’s bombings at the Boston Marathon – on the ongoing immigration debate on Capitol Hill.

The amendment to the Gang of Eight immigration bill from Sen. Chuck Grassley (R-Iowa) would require the Department of Homeland Security to transmit information about student visas into U.S. Customs and Border Protection databases. If that isn’t done within 120 days, issuing certain student visas would be suspended. Such a precaution would ensure that student visas ran current when a student enters or comes back to the U.S. on that visa.

One alleged accomplice of Dzhokhar Tsarnaev, the surviving suspect from last month’s attack in Boston, was allowed to reenter the United States earlier this year although his student visa had expired. Azamat Tazhayakov, a classmate of Tsarnaev at the University of Massachusetts-Dartmouth, returned to New York from Kazakhstan on Jan. 20, although the school had already dismissed him.

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This Summary will outline the key provisions of the Immigration Reform Bill “Border Security, Economic Opportunity, and Immigration Modernization Act” and will focus mainly on the third large section of the Bill, Future Immigration.

This part of the Bill encompasses the provisions covering new Merit-Based Immigration System, Family-Based Immigration and Employment-Based Immigration. Below we will summarize the main points for each of these sections.

*NOTE: We would like to clarify for our readers that this section applies to “immigrant visas,” which means that after admittance to the U.S. the individuals will have lawful permanent resident status (i.e. will have green cards). This section of the Bill does not refer to nonimmigrant temporary visas.

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Many of our Blog readers have been inquiring about the status of the E2 visa for Israel. The following is a recent update by the American Immigration Lawyers Association.

In June 2012, President Obama signed into law legislation that adds Israel to the list of countries eligible for E-2 treaty investor visas. Regrettably, Israel nationals remain ineligible for E-2 status because of delays in implementing the new law.

The legislation is conditioned upon visa reciprocity. Accordingly, once the new law was sent to the State Department for implementation, teams from the United States and Israel began discussing the terms and conditions that E-2 status will provide to Israeli investors in the U.S. and examining whether Israel will provide similar terms and conditions for American investors in Israel. These discussions were complicated by the fact that Israeli immigration law does not currently provide for a visa category that parallels the E-2 visa.

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We previously reported on the temporary freeze on filing H2B visas. H-2B petitions for temporary non-agricultural workers are being adjudicated once again at the Vermont Service Center (VSC).

VSC anticipates completing pending petitions by early May, and have advised that no action is required by petitioners. The suspension of H-2B adjudications was imposed by USCIS on March 22, 2013, in response to a court order vacating part of the DOL’s 2008 wage methodology rule for certain H-2B prevailing wage determinations.

VSC management has confirmed that premium processing refunds for H-2B petitions filed in March have all been processed and the Debt Management Office is handling the review and issuance of the refunds. Some refunds have already been issued and petitioners should expect to see those in the coming weeks.

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Una opción disponible para los mexicanos que por cualquier razón quieran trasladarse a los Estados Unidos, es aplicar para la visa E-2, o visa de inversionista.

Desde 1994, México es uno de los llamados Treaty Countries, lo que hace que sus residentes sean elegibles para visas E-2. Mientras que el Departamento de Estado solo dice que la inversión necesaria para calificar para este tipo de vida debe ser “sustancial”, recomendamos una inversión en un rango entre 50 mil a 150 mil dólares.

“Los trabajadores ordinarios -calificados o no calificados, no son elegibles”, para las visas E-2, de acuerdo a los lineamientos del Departamento de Estado.

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This is a very important Change effective today. Be aware that this change applies to nonimmigrants only. It has no bearing on U.S. Citizens and U.S. Lawful Permanent Residents.

Beginning April 30, 2013, U.S Customs and Border Protection will begin automating the I-94 process. Form I-94 provides nonimmigrants with proof that they have been lawfully admitted to the U.S. As part of the automation process, individuals traveling to the U.S. by air or sea will no longer complete or receive a paper I-94 document.

Despite this change, USCIS will continue to require applicants to submit a paper copy of Form I-94 when requesting certain benefits. In addition, other government agencies such as State Departments of Motor Vehicles and the Social Security Administration offices will still require a paper I-94. The paper I-94 may also be useful for work-authorized nonimmigrants to present to their employers during the employment eligibility verification (Form I-9) process, and to demonstrate lawful presence in the U.S. to other U.S. authorities.

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A recent case from the 11th Circuit affirmed a decision by the Board of Immigration Appeals (BIA) regarding departures from the U.S. and what is not considered a “departure” under the regulations. In 2012, the BIA decided Matter of Arrabally where they held “that an alien who has left and returned to the United States under a grant of advance parole has not made a ‘departure . . . from the United States’ within the meaning of [§ 1182(a)(9)(B)(i)(II)].”
In this recent decision by the 11 Circuit, the issue before them was whether the alien was inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II). Under this statute, an immigrant who is not a lawful permanent resident, has been unlawfully present in the United States for one year or more, and seeks admission to the United States within ten years of the immigrant’s departure or removal from the United States is inadmissible. In this case, The Immigration Judge found that Malpica was removable under § 1182(a)(9)(B)(i)(II) because she had left the United States on July 18, 2003. However, she left pursuant to a grant of advance parole, and was paroled back into the United States on July 31, 2003. Under Matter of Arrabally, her exit pursuant to a grant of advance parole does not qualify as a “departure” within the meaning of § 1182(a)(9)(B)(i)(II) and Malpica is, thus, not inadmissible under this section. Thus, this charge of removability cannot be sustained.

This decision by the 11th Circuit conforms with the BIA decision regarding the removability of an individual when they were admitted back to the U.S. pursuant to a grant of advanced parole. Before Matter of Arrabally had been decided, individuals who left the U.S. when they were removable under this provision were always at risk of being denied entry and removable from the U.S. Now, the BIA’s decision regarding this issue has been affirmed by one of the circuit courts. So long as the other circuit courts continue to decide the issue in this fashion, individuals who have been granted advanced parole, despite being removable under 1182(a)(9)(B)(i)(II), will not have to worry about being denied reentry or being removed under that statute once they have been admitted.