Visa Lawyer Blog

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From time to time we get guest Bloggers to write for our Blog. This recent article is by Abby Pearson, an avid blogger who regularly writes on a variety of legal topics. Abby is interested in different student visas and how an immigration lawyer can help those looking to qualify for them.

College is a time to not only decide on a major and choose your career path, but also a time for adventure and for exploring the world. For many college and university students, this means studying abroad. Along with hundreds of thousands of students leaving the United States for countries throughout Europe and South America, hundreds of thousands of other students leave their homelands and journey to the United States every year to study abroad.

Preparing for studying abroad can be very complicated. Along with leaving home for several months to a year, students must also apply for a student visa. Along with the F-1 and M-1 visa, students can also choose to apply for a J-1 visa program. This visa is a non-immigrant visa for exchange students typically seeking medical or business training with a college or university. In many cases, it is reserved for students needing to obtain practical training that is not available in their home country in order to complete their degree.

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Our readers have asked for a comprehensive FAQ on this topic so we have provided the following summary for you.

Watch our I-601A Video here

On January 3, 2013, The Department of Homeland Security (DHS) published a new unlawful presence waiver’s rule, which allows certain immediate relatives of the U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigration visa applications.

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On January 2, 2013, USCIS and Department of State held a public engagement devoted to the final rule on Provisional Unlawful Presence Waivers which was posted in Federal Register today. After several months of reviewing public comments, USCIS has announced that the Final Rule implements some of the public’s comments to the draft of the rule.

This new Provisional Unlawful Presence Waiver process allows certain immediate relatives of U.S. citizens who are physically present in the United States and are seeking permanent residence to apply for and receive provisional unlawful presence waivers before departing the U.S. for consular processing of their immigrant visa applications abroad. This new process will significantly reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the immigrant visa process to become permanent residents.

WHO IS ELIGIBLE FOR PROVISIONAL UNLAWFUL PRESENCE WAIVER

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We have been expecting this day for so long, but today is the day. Secretary of Homeland Security Janet Napolitano today announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS.

Our office will attend a Phone Conference with the USCIS later today and we will provide further updates on this process in the next few weeks.

Please email us with any questions.

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On Friday I appeared at the 6PM evening news of KUSI to discuss a very concerning topic in current International Adoptions Law. Russian President Vladimir Putin signed into law, December 28, 2012, a measure that bans the adoption of Russian children by U.S. families effective January 1, 2013.

His actions could affect hundreds of U.S. families seeking to adopt. Americans adopted close to 1,000 Russian children last year, according to U.S. State Department figures.

The U.S. State Department said it “deeply regrets” the law announced by the Kremlin.

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Over the next few days many articles with a look back on the year’s biggest immigration stories will be published. If you look through the articles I bet you will see one thing in common: illegal immigration issues dominated the entire 2012 just like they did in 2011. Will we see some signs of reform in 2013, too early to know.

A few more stories we selected that we would like to add as the highlights of 2012:

1. How U.S. Open Immigration Policy Made It the Country to Beat in the Summer Olympics

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Did you know that forty percent of Fortune 500 companies in the United States were started by immigrants or the children of immigrants. From 1995 to 2005, half of Silicon Valley startups had an immigrant founder and in 2005 alone those businesses did $52 billion in sales creating more than 400,000 jobs. Iconic American companies that built whole new industries like US Steel, Dupont, Google, eBay, Honeywell, and Intel were started by immigrant founders. Chobani Yogurt, founded in 2005 by the immigrant entrepreneur Hamdi Ulukaya in upstate New York, has created 1,500 American jobs.

Just as we find common ground that unites families and protects communities, so too should we ensure that the world’s most talented innovators and entrepreneurs who are educated in our great universities are able to stay and contribute, rather than be forced to set up competitor businesses abroad. Many end up leaving because our visa options for self employed founders are limited.

Foreign Start Up founders often struggle with visa options to stay and launch a company in the US. The options are limited, if your country is part of a US Investment treaty, one can apply for the E2 visa and start a small company by investing some money. If you have a million dollars, you could also invest in your business, and could apply for the EB5 Immigrant Visa. But what if you don’t have money, and your country is not a member of the E2 treaty? Well until recently you were out of luck.

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A Green Card is not for ever. Once a person obtains Permanent Residency there are rules to follow in order to keep that Green Card. The AILA DC Chapter offers this pointer to provide a brief overview on this topic.

U.S. Customs and Border Protection’s (CBP) treatment of lawful permanent residents (LPRs) who leave the United States for long periods of time, yet return once every six months, has been of long-standing concern to many. There is a common misunderstanding that simply returning to the United States once every six months will preclude a finding that one has abandoned his or her lawful permanent residency.

Whether an LPR has abandoned permanent residency, however, is not based solely upon the length of time spent outside of the U.S. In fact, during an October 20, 2011 meeting with the D.C. Chapter’s CBP Liaison Committee, Baltimore (BWI) CBP representatives confirmed that “CBP officers are less focused on the length of time abroad and more on where does the person actually live.”

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The day has finally arrived!! Effective Dec. 5, 2012, applicants in Mexico may no longer file Form I-601, Application for Waiver of Grounds of Inadmissibility at the USCIS Ciudad Juarez Field Office or any associated Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. Applicants in Mexico must now file Form I-601 and associated Form I-212 with the USCIS Phoenix Lockbox.

On June 4, 2012, USCIS adopted a comprehensive change to the Form I-601 filing process for waiver applicants located outside the United States requiring that waiver filers located abroad file their waiver application with the USCIS Phoenix Lockbox. For the first 6 months of this change, through Dec. 4, 2012, USCIS made an exception allowing Form I-601 waiver applicants located in Mexico the option of filing their Form I-601 applications and any associated Forms I-212, with the USCIS Ciudad Juarez Field Office or with the USCIS Phoenix Lockbox. This exception expired on December 4, 2012.

This announcement does not affect Form I-601 filings that may be eligible for processing by a USCIS international office due to exceptional and compelling humanitarian reasons or Form I-601 filings with the Havana Field Office for waiver applicants in Cuba.

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Nearly 102,965 young undocumented immigrants have been granted temporary permission to live and work in the United States, according to statistics released recent from U.S. Citizenship and Immigration Services (USCIS). Total number of applications received is 367,903. Nationals of Mexico are leading the list with 258,708 applicants.

An estimated 1.7 million undocumented immigrants nationwide could potentially be eligible for the program, according to the Migration Policy Institute.

We will keep you posted with new numbers in 2013.

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