Visa Lawyer Blog

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The Immigration and Nationality Act (INA) permits the change of an individual’s immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.” In order to conclude the process the couple must go through an interview before a USCIS official, establish that the case is bona fide, before obtaining a Green Card.

Many clients are hesitant to take an attorney with them, and are often confused as to whether one can even have an attorney present at the interview. Some officers make it difficult on lawyers and clients who are represented. A recent AILA meeting with the USCIS clarified a few points.

The following questions were raised by American Immigration Lawyers representatives: We have received reports that some field offices restrict the involvement of the attorney during the interview process. The USCIS Milwaukee Field Office has stated that it follows AFM §15.8, which explains that the attorney’s role at the interview is limited to advising his or her clients on points of law, and that the attorney may not respond to questions the interviewing officer has asked the applicant. The office has stated that after the interview, the attorney may follow-up with any concerns regarding the interview and interview questions, or may submit additional information in response to a Notice of Intent to Deny. While we understand the attorney may not answer any questions on behalf of the applicant, there are often times where it is not only appropriate, but helpful to the examiner for an attorney to help clarify a point of confusion, provide prepared documents on a legal issue, or explain a complicated procedural issue in the applicant’s immigration history that the applicant might not fully understand. What guidance, if any, in addition to the AFM, has been provided to USCIS examiners regarding the role of the attorney in the interview process?

Immigration Response: USCIS has spent a considerable amount of time training the ISOs on interview techniques. This training is provided at the field offices and at the ISO Basic training and includes information on the role of the attorney or representative in the interview. Also, as discussed at the meeting with AILA, AIC, and USCIS in April 2011, we welcome suggested language from AILA to potentially incorporate into any guidance USCIS creates regarding this topic.

Attorney Seating. We have been informed that during interview for immigration benefits, attorneys are sometimes instructed to sit in a corner of the room, behind or otherwise apart from the applicant. Examiners have remarked that this rule is to prevent attorneys from participating in the interview. Such a rule conflicts with the right to representation as provided under 8 CFR §292.5(b). Would Field Operations send clear guidance to the field offices stating that attorneys have a right to attend and represent their clients at interviews for immigration benefits, and should be permitted to sit next to their clients, or make other comparable arrangements if space does not easily permit, that would allow the attorney to properly observe the interview and provide appropriate legal assistance?
Immigration Response: Field Operations provided guidance to its offices regarding seating of attorneys during interviews in May 2010 and again in April 2011.

It is critical that USCIS respect the integrity of the attorney/client relationship. Attorneys and/or accredited representatives should, barring safety or security concerns, be permitted to sit next to their clients during interviews. In terms of safety and security, in directing seating during benefit interviews,
adjudicators should ensure that:

Officers have a full view of everyone in the room,

No one in the room, other than the officer, is seated in view of a government computer/monitor screen, and

Egress is not blocked for any of those present in the interview room. Please understand that some interview rooms are not large enough to accommodate the applicant(s) and attorney all sitting in the same row. In these situations, an attorney may be asked to sit behind his or her client.

If you have retained an attorney, it is your right to have that attorney be present with you at the interview and provide you the best representation at that interview. A competent attorney should know his rights before the USCIS, in addition to knowing the law. USCIS are not always correct, it is our role to advocate for our clients.

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A California State Bar panel is considering whether an illegal immigrant who passed the exam to practice law should be admitted despite his status.

The case of Mexican-born Sergio Garcia could be the first reviewed by the panel since California began asking applicants about their immigration status in 2008, the Daily Journal reported Wednesday.

Garcia attended college in Chico and passed the Bar exam in July 2009. Since then, he has been waiting to see if he can be admitted even though he is an illegal immigrant. He now works as a paralegal.

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Recently, the USCIS Service Center Operations Directorate hosted an engagement with AILA representatives. USCIS addressed questions related to Requests for Evidence, the L-1 visa category, and court case decisions. The information below provides a review of the questions solicited by AILA regarding the increased denials in L1A cases and the responses provided by USCIS. We continue to fight and win many of the motions resulting in such erroneous denials.

Question: AILA members report receiving denials of L-1A “new office”petitions where service centers conclude that there is insufficient proof of consideration, or inadequate consideration, for the acquisition by one entity of another, notwithstanding the submission by the petitioner of evidence in the form of executed contracts, stock certificates, and other documentation showing the corporate transaction. Please instruct service centers that the financial arrangements involved in a corporate transaction are not a proper area of inquiry so long as there is other evidence of the creation of a qualifying corporate relationship between the foreign and domestic entities.

Immigration Service Answer:There may be circumstances in which it is necessary to request financial documentation to help establish a qualifying relationship. Such a determination must be made on a case-by-case basis. SCOPS will discuss this topic with the service centers. If there are examples where an I-129 L-1A petition was adjudicated improperly, please provide us with the receipt number, and we will review.

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The issue of immigration is one of the most complex and politically difficult issues because there is so much passion on all sides. It literally goes to the very heart of what it means to be an American. I wanted to share this great post from AILA leadership site:

Discussions about immigration reform often focus on the issue of “undocumented” or “illegal” aliens. But fixing our broken immigration system is about more than the determining the fate of the estimated ten million people currently living and working and studying in the United States without papers. In the words of President Clinton, “It’s the Economy, Stupid.” Immigration reform would allow us to create a legal framework for who we want to have remain in our country, who we want to exclude, and to do so in a way that reflects our values and our interests. The bottom line, however, is that reform would benefit the bottom line. Reform would raise wages, decrease unemployment, and increase tax revenues. Who wouldn’t want that?

Currently, our immigration system hurts our nation’s economy. We want to invite investment in our economy, attract bright and talented people in our businesses, and to create a fair and level playing field for our workers. Our immigration system falls short of each of these goals.

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A New York judge released Dominique Strauss-Kahn from house arrest Friday, after prosecutors presented evidence questioning the credibility of the hotel maid who accused the former International Monetary Fund chief of sexual assault.

The alleged victim, a 32-year-old immigrant from Guinea, admitted to prosecutors that she lied about the specifics of her whereabouts following the incident, the details of an asylum application and information she put on tax forms.

According to a New York Times report, the 32-year-old hotel maid may be linked to drug dealing and possible money laundering. The unidentified woman also lied to investigators about previously being raped in her native Guinea.

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We have been duplicating a immigration policies of continental European –countries similar to France as good as Germany – which have utterly unsuccessful to confederate as good as cushion their populations

America is still distant forward of a rest of a world. We still do immigration improved than a lot of a rest of a world. But if America will not start changing the way we look at Immigration and Immigrants, how we welcome them and embrace their skills, we will loose big time.

Fareed Zakaria put it nicely in his latest article on CNN:

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In recent months, the L-1A visa has been under attack by Immigration. More Requests for Evidence and more denials have been forthcoming on L-1 visas than have been issued in the past. Such issues that have arisen recently include the adequacy of the employer’s office space, the nature of the business itself, and even ownership concerns. What is more vexing is when Immigration sends a Request for Evidence asking for more evidence, providing the evidence asked for, and then receiving a rejection notice on a totally unrelated issue that was never raised in the Request for Evidence. Andrew Despositio, Esq. from our office with our team won an amazing motion to re open on a difficult L1A case denial.

Recently, our office submitted an L-1 petition on behalf of a company with a newly founded subsidiary in the U.S. The subsidiary is in the business of marketing the hearing and eye protection that is manufactured and distributed by the parent company in the foreign country. The subsidiary established that it had a legitimate need for an employee from the parent company to act as an executive/manager under the L-1A visa.

Once the case was submitted, a Request for Evidence came back asking to substantiate the business premises, the parent company’s premises, a feasibility study of the subsidiary’s business made by the parent company, insurance statements from the subsidiary, bank statements from the subsidiary, and a lease agreement from the subsidiary. All of these documents were provided to immigration to fulfill each request it made. In the end the case was still denied.

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The Department of State (DOS) has launched the anticipated new version of the Form DS-160 Nonimmigrant Visa Application.

The form’s new version clarifies, in no uncertain terms, that the applicant – and no one else – must electronically sign and submit the DS-160 form. As part of a newly formatted opening page, the DS-160 advises applicants to:

“be aware that under U.S. law you must electronically sign and submit your own application unless you qualify for an exception. This means that you (the applicant) must check the ‘Sign Application’ button, even if someone else helped you fill the application out.”

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Senator Robert Menendez (D-NJ), together with six other Democratic Senators, introduced the Comprehensive Immigration Reform Act of 2011. The bill, which would overhaul the country’s immigration system, proposes a mandatory employment verification system, a federal commission on immigration, and an earned path to citizenship for those undocumented immigrants already in the United States.

The Senate bill stands in contrast to recent House bills that focus on narrow aspects of immigration reform, such as expansion of E-Verify and tougher immigration enforcement laws. Immigration Reform Bill Introduced in the Senate.

While we remain skeptic that any major reform will happen any time soon, the only positive side is that there is still some support and interest by certain members of Congress to pass reform.