Visa Lawyer Blog

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On Wednesday, President Obama gave the State of the Union address. During his speech, President Obama discussed many key themes in immigration, including the DREAM Act for students and foreign students educated in this country to have a way to legalize their status, and a belief that he’s done enough to the secure the border. More importantly, he framed these themes in context to America’s economic recovery, innovation and growth.

In the State of the Union address, President Obama repeatedly signaled to Congress that he would sign sensible bills to reform our immigration system, big or small. But he quickly noted that partisan politics would make it all but impossible to pass comprehensive reform:

“The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now. But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, and defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away.”

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It is a sad day when a high school student is denied an opportunity to pursue his sports passion and a solid university education because of an arbitrary and capricious policy. Chester Brown is a highly recruited football player in the State of Georgia. He is also the son of Samoan immigrants. Chester committed to the University of Georgia back in July, 2011. Yesterday, Chester reluctantly announced he will not be attending as the result of a controversial immigration policy at the university. The Georgia Board of Regents Policy states that an undocumented student cannot be admitted to the school over a legal resident should there be a space limitation.

Chester would not say whether the policy forced him to make the decision, but the Atlanta Journal Constitution, cited multiple sources, indicated it was. Chester said simply it was his decision – and a painful one at that. “It was my decision to make, and I had to do it,” said Chester. “When I told the coaches they just were surprised, but they told to me do what I have to do. I don’t want anyone to think that we went out on bad terms, and I love UGA, but I had to make this decision.” Chester’s status is unclear. His parents, who immigrated to the country decades ago, said he was born in the United States. But he apparently does not have the proper documentation.

The Board of Regents rule came about following an incident involving Jessica Colotl, a Kennesaw State student who sparked a national immigration debate after she was found to be in the country illegally following a traffic stop in May of 2010. She was attending the school and paying in-state tuition at the time. Colotl was jailed and nearly deported back to Mexico but was eventually allowed to return to school; she graduated last spring.

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Our offices specializes in complex J1 waivers, the following Blog post will describe a recent success case we feel will benefit our readers. This article is presented by Attorney Ekaterina Powell from our office.

A lot of J-1 Exchange Visitors coming to the United States are subject to a so-called “two-year rule” which means that J-1 holders are required to return to their home countries for two years after completion of the exchange program. This rule creates a lot of obstacles for foreigners who get married to U.S. citizens but are unable to adjust status because of the two-year rule.

So, what can these couples do in a situation like this?

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In a previous Blog post we have updated the period of Admission for Canadian Applicants, this post will provide the latest update for Mexican Professional Applicants under NAFTA.

Prior to Mexico’s accession to the U.S./Canada agreement. IMMACT90 made U.S. immigration laws more restrictive. When Congress later approved the favored relationship–NAFTA–citizens of Mexico were given the benefit of the then-current U.S. immigration law. Benefits granted to Canadian citizens of the CFTA prior to IMMACT90, therefore, were not granted to citizens of Mexico. Unlike Mexicans, Canadians are not required to have visas except in the E and K categories, although they must meet all the requirements of a visa category to be eligible for admission to the United States.

In contrast, citizens of Mexico without border crossing cards (BCCs) must have visas, and therefore, they are not eligible for the port-of-entry adjudication afforded Canadian citizens by NAFTA. Although U.S. immigration laws have become increasingly restrictive, NAFTA citizens of Canada and Mexico are favored more than businesspersons from any other country.

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With the upcoming changes to the I-601 Extreme Hardship Waiver coming this year, allowing applicants to file the Waivers inside the US, we wanted to provide some statistics on the status of cases currently filed overseas.

As you may know,if you are a U.S. citizen or legal permanent resident who is married or engaged to an undocumented immigrant you may think you can easily legalize your spouse. This may be harder than you thought. There are times when your loved one will be deemed “inadmissible” and therefore unable to simply file through you for a green card. In such a situation it may be possible to file an I-601 Application for Waiver of Grounds of Inadmissibility for them. This consists of filing an I-601 immigration form and evidence of hardship.

So what is the current approval rates and processing times for I-601 applications:

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The new Policy has been expected, but now it is official. The Border Patrol this month is overhauling its approach on migrants caught illegally crossing the 1,954-mile border that the United States shares with Mexico.

The U.S. Border Patrol has announced a change in the so-called catch-and-release-policy, whereby illegal immigrants from countries other than Mexico, captured at the U.S.- Mexico border were automatically released to await a court hearing. Very few ever show up for their court hearing in reality.

The Border Patrol now feels it has enough of a handle to begin imposing more serious consequences on almost everyone it catches, from areas including Texas’ Rio Grande Valley to San Diego. The “Consequence Delivery System” — a key part of the Border Patrol’s new national strategy to be announced within weeks — relies largely on tools that have been rolled out over the last decade on parts of the border and expanded. It divides border crossers into seven categories, ranging from first-time offenders to people with criminal records.

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The following is a brief update regarding the period of admission allowed under the TN visa and how is it determined by CBP officers.

The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to qualify for TN nonimmigrant classification in order to provide professional services in the United States.

A citizen of Canada may apply for TN classification concurrently with an application for admission at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station. It is not necessary for a citizen of Canada to first apply for a TN visa at a U.S. consulate outside the United States.

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Today was to have been the deadline to end a Department of Homeland Security​ program reviewing cases of undocumented immigrants in Denver who pose no security risk to the country.

Despite that, government officials acknowledged Thursday they will continue to review 7,800 cases in Denver involving nonviolent immigrants who came to the U.S. as children or who have strong familial ties — including lesbians and gays — to decide whether they should be allowed to stay or officials should press forward with deportation proceedings.

The pilot program, launched six weeks ago in Denver’s immigration courts, will continue until every case is reviewed, said U.S. Immigration and Customs Enforcement spokeswoman Barbara Gonzalez.

“Some of these cases are extremely voluminous, with thousands of pages, and it takes time for attorneys to review,” Gonzalez said of the ongoing review. “It is not a sprint. It is about being careful. We know we are making an impact on human beings’ lives.”
The only thing that will change is that immigration judges will again begin hearing cases of immigrants who are not detained. Under the pilot program, the immigration judges were only concentrating on immigrants who were detained to make sure they dealt with the highest-priority cases.

In the meantime, Sujey Pando, a lesbian married to an American citizen, is waiting on the status of her immigration case and is nervous because she is aware of what she believes is a deadline and hasn’t heard a word.

Pando, 34, is from Mexico and legally married her longtime partner Violeta Pando in Iowa in 2010. Sujey Pando was brought to the Denver area as a child by her mother, then kicked out of the family home at 16 after revealing she was gay.

In 2008, she was pulled over in Adams County for not using a turn signal. She didn’t lie to the officer about her undocumented status. She has been fighting deportation since.

“She is not a danger to her community or national security, and she is not a high-priority case for removal,” said her attorney, Lavi Soloway. “More than most people, she really does meet many of the guidelines and has some very compelling and sad facts that are part of her case that need to be weighed in this process. We are concerned that they are not reviewing the file or giving her the consideration for administrative closure.”
On Aug. 18, Homeland Security Secretary Janet Napolitano announced the shift in policy and said it would free the courts to deal with violent offenders and true threats to national security.

Critics of the plan say it is a back door to amnesty.

On Aug. 19, a Denver immigration judge decided to delay a decision on whether to deport Pando, citing the policy changes announced by Napolitano the day before.

Pando, a restaurant service manager, submitted volumes of evidence of her abuse as a child and teenager coming to this country to the immigration court. She also provided affidavits from family and friends about her commitment to her marriage and the community.

When her case was delayed in August, Soloway advised her not to add more paperwork to the file but changed his mind last week and submitted another 76 pages of affidavits and evidence to support her case.

“I do think that this case meets the criteria for being closed and Sujey and Violeta should be able to go to sleep (tonight) knowing the threat of deportation is not hanging over them,” Soloway said.

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This is an important decision for all employers with current H1B employees. The Department of Labor’s Administrative Review Board (ARB) found that the time period it took for the employee to obtain a social security card, which the employee’s employer required for their payroll system, was “nonproductive status.” The employer was therefore required to pay wages for the two-week period that it took for the employee to obtain the social security card.

However, the ARB found that the employer did not owe back wages to the H-1B worker for the period between her arrival in the U.S. and the date she contacted her employer to inform them that she was in the U.S. The ARB also found that the employer was not required to pay wages to the H-1B worker for the time period in which she was unavailable for work as a result of personal matters such as opening a bank account, obtaining a car lease, securing a driver’s license, and securing schooling and day care for her children. These were periods in which the H-1B worker was in voluntary nonproductive status.

The DOL has a regulation that states that an employer who files an H1B petition must begin to pay the sponsored worker the required LCA wage when the worker enters into employment. The DOL defines this as when the worker makes himself or herself available for employment or when the worker comes under the control of the employer.

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The following article covers CBP standards for accepting L-1 petitions for Canadians under NAFTA. The standards discuss the burden of proof, package completeness, review of the petition, and submission to USCIS by CBP.

With the institution of the North American Free Trade Agreement (NAFTA), the use of L-1 visas has been supplemented by the use of E-1 and E-2 visas. However, the L-1 can be easier to apply for because it requires less documentation and can be immediately obtained at the border and other Ports of Entry. The L-1 visa, therefore, continues to be a useful immigration tool for companies that do not qualify for E status.

1. The burden of proof for establishing eligibility rests with both the petitioner who is filing the petition; and the beneficiary, who is applying for admission.

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