Visa Lawyer Blog

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Last week U.S. Citizenship and Immigration Services (USCIS) posted a Notice in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion. But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process.

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With a few days left before the April 2, 2012 deadline, we learned that poor filing decisions make risk your case delivery and as a result miss the H1B cap.

USCIS stated that cases are considered “accepted on the date that USCIS takes possession of a properly filed petition with the correct fee,” and that it does not rely on the date the petition is postmarked or the date the petition is delivered to a P.O. Box or USPS address.

Employers are advised that petitions that are sent to USCIS via U.S. Postal Service Express Mail, even those that are addressed to the physical address of the service center, are not actually delivered to the service center, but are instead delivered to a U.S. post office. When received at the U.S. post office, such petitions may even be “signed for” as received by a USCIS official.

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We have announced the TPS for Syrians on March 23, 2012, today this is official. Due to the violent upheaval and deteriorating situation in the Syrian Arab Republic (Syria), U.S. Citizenship and Immigration Services (USCIS) announced today that eligible Syrian nationals (and persons without nationality who last habitually resided in Syria) in the United States may apply for Temporary Protected Status (TPS).

The TPS designation for Syria is effective today and will remain in effect through September 30, 2013. The designation means that eligible Syrian nationals will not be removed from the United States, and may request employment authorization. The 180-day TPS registration period begins today and ends on September 25, 2012.

To be eligible for TPS, Syrians must meet all individual requirements for TPS, including demonstrating that they have continually resided and been continually physically present in the United States since March 29, 2012. All individuals who apply for TPS will undergo a thorough security check.

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Our office is busy with completing all our H1B petitions to be ready for April 1 deadline. This is a recent update regarding prevailing wage issues. Department of Labor issued revised Frequently Asked Questions (FAQ) for the H-1B 2012 filing season. I wanted to cover the Prevailing Wage topic.

Many of our readers will undergo labor certification in the process of obtaining permanent residence. Those who have been through the process know that documenting the prevailing wage is among the many challenges of a labor certification.

The prevailing wage is the average wage paid to similarly employed workers in a particular occupation in the geographic area of intended employment. In accordance with procedures issued in 1998, in most cases the State Employment Workforce Agencies (SWAs) are required to determine the prevailing wage rate based on wage surveys conducted by the Bureau of Labor and Statistics under the occupational employment statistics (OES) program. There are exceptions to this for certain positions that are covered under the Davis-Bacon Act (DBA) or other Service Contract Act (SCA), or where there is a negotiated collective bargaining agreement.

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Because state laws requiring local law enforcement to verify citizenship are now tied up in the courts, some state lawmakers may focus instead on making daily life difficult for illegal immigrants. Of particular interest is a provision in Alabama’s law that invalidates all contracts entered into with illegal immigrants. “That is one that has a much greater effect than some people might expect at first glance,” said Kansas Secretary of State Kris Kobach, who helped write the law. But Karen Tumlin of the National Immigration Law Center complained the provision “has led to nothing short of chaos” in Alabama, as it has been “applied to a striking range of activities, from getting tags on your cars to getting public utilities to changing title on your cars.”

Still, that seems to be the objective for Kobach and some others: Create enough fear and uncertainty, and illegal immigrants will leave a state on their own.

An article in today’s San Diego Union Tribune confirms that, supporters of such measures said they are intended to make life difficult for the undocumented, with the goal of spurring them to return to their native countries or at least leave this region. The report, titled “Life as an Undocumented Immigrant: how restrictive local immigration policies affect daily life,” was released by the Center for American Progress, a think tank in Washington, D.C., that produces in-depth analysis of various issues targeted at policy makers and media. This study is the second in the center’s “Documenting the Undocumented” series, which began with a look at how immigration-related laws in Alabama were affecting the undocumented population there.

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This is a recent update on the E2 Visa Bill for Israeli Nationals. Many investors from Israel would like nothing better than the opportunity to do so and thus earn the right to live and work in the U.S.

On February 9, 2012, legislators introduced H.R. 3992 which would allow otherwise eligible Israeli nationals to receive E–2 nonimmigrant visas if similarly situated United States nationals are eligible for similar nonimmigrant status in Israel.

On 2/28/12, the House Judiciary committee passed H.R. 3992 by a voice vote. The measure must next be scheduled for vote by the entire House of Representatives.

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Following our recent update on retrogression, we have the following news: Charlie Oppenheim, Chief, Immigrant Visa Control & Reporting in the State Department, provided AILA with further information on priority date movement in the EB-2 category for China-mainland born and India for the remainder of FY2012.

When the May Visa Bulletin is published, the China and India EB-2 cut-off will retrogress to August 15, 2007. Demand is still increasing at a very high rate and must be checked to maintain numbers for natives of other countries. As for projections for the remainder of the year, it is too early to predict movement.

USCIS has informed Mr. Oppenheim that they will continue to “preadjudicate” adjustment applications received through April. The “preadjudicated” cases will be held by the State Department in the “pending” demand file.

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Tens of thousands of same-sex couples in the United States live under the threat of separation because federal law prohibits immigration authorities from treating them the same as married opposite-sex couples.

And in a country where feelings run deep on immigration and same-sex marriage, the foreign-born same-sex spouses and partners of Americans live in a unique legal limbo: In the eyes of the government, they’re neither married nor are they citizens.

It’s an emotional and financial burden. They can’t leave the country to see loved ones for fear they won’t be allowed back. They might not be allowed to work or get loans to pay for college. If they’re deported, they can be barred from re-entering the U.S.

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A group of immigrant activists in Arizona is developing a smartphone application that will enable people arrested on immigration charges to inform their family and attorney of their whereabouts and detention.

The “Emergency Alert and Personal Protection” app will send arrest information to a pre-set list of supporters using GPS technology. With the touch of a button, friends and family will know what’s happened. Too often, undocumented immigrants can be detained for days or even weeks before relatives are able to find out where they are. The application also will have an option to record video and audio, and then send it to a safe storage place so legal counsel can access it later. The app will also provide information about basic civil rights in English and Spanish to help guide the detainee during police questioning.

Immigrant advocates say they’re using the technology to counter SB 1070, the Arizona law that has driven thousands of immigrants out of the state. Considering how difficult it is for undocumented immigrants to send any message of their whereabouts to friends or family, the smartphone app will help facilitate release and speed up the process to resolving the situation. Many times, undocumented immigrants wait days, even weeks before anyone knows what has happened or what can be done to take care of their detention.

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On March 16, 2012, at the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim, Chief, Visa Control and Reporting at DOS, informed participants that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

Congress sets limits on the number of immigrant visas that can be issued each year. In order to adjust status to that of legal permanent resident, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication. The Department of State publishes a monthly Visa Bulletin which lists the cut-off dates that govern visa availability. Therefore, the monthly Visa Bulletin determines which applicants are eligible to file for adjustment of status, as well as which applicants are eligible for a grant of permanent resident status. Applicants who have a priority date earlier than the cut-off date published in the most current Visa Bulletin are eligible to apply for permanent residence.

The cut-off dates on the Department of State Visa Bulletin are adjusted monthly and are posted on its website at http://travel.state.gov. This adjustment is determined by the Department of State after consideration of a number of variables such as:

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