Visa Lawyer Blog

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While many gay couples in New York tie the knot on Sunday, when same-sex marriage becomes legal in the state, Ashley Abraham-Hughes and her wife, Corinne, will be watching the festivities from the other side of the Atlantic.

That’s because since U.S. federal law still does not recognize same-sex marriage, and since Corinne is British, the couple was forced to move to Britain, where their union — they wed in Connecticut in 2009 — is legal.

“While I do still love the U.S. and I always will, I am very resentful of the fact that I was effectively forced to become an expat,” said Abraham-Hughes, a 27-year-old who grew up in Pittsford in western New York and now lives in Manchester. “It’s absolutely ridiculous, and I just think the thinking on this whole issue is completely wrong.”
The couple’s plight is one likely facing many of the estimated 36,000 binational gay couples in the U.S., where the foreign partner in the relationship can face deportation and a 10-year ban from returning to America if they don’t already have or find a legal way to stay in the country.

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Yesterday, the House Judiciary Committee approved to go forward HR 704, the “Security and Fairness Enhancement for America Act of 2011.” With a name like that, you would think the bill was many hundreds of pages and proposed changes to the court system or at least dealt with the huge backlogs in the immigration adjudication system that were the subject of recent hearings before the Senate Judiciary Subcommittee. However, the bill, introduced by Representative Bob Goodlatte (R-VA), is little more than a page, and does nothing but cut the number of new legal immigrants to the United States by eliminating a small program known as the Diversity Visa.

The bill, sponsored by Intellectual Property Subcommittee Chairman Bob Goodlatte (R-Va.), was reported favorably to the House floor by a vote of 19-11. According to the Subcommitte, “This program is plagued by fraud and is an open door for terrorists.”

For a little background information, The diversity visa program was created in 1990 to increase diversity in the United States immigrant population by providing up to 55,000 greencard visas per year. Since they were first issued in 1995, over 785,000 diversity visas have been issued. Individuals who receive a diversity visa are free to petition for greencard visas for their family members.

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We have recently won another incredible case under the National Interest Waiver Category for a renowned scientist in the field of neuropathic pain! Attorneys Ekaterina Powell and Andrew Desposito from our office did a great job in this case. Andrew provides another summary of the process for our readers.

In this second part of the National Interest Waiver series, we discuss another class of persons who qualify. As before, there are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien that is a member of a profession holding an advanced degree.

In order to be an Alien that is a member of a profession holding an advanced degree, one must show two things: That the Alien is a member of the professions holding an advanced degree and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.

The Alien is a member of the professions holding an advanced degree

Our client that got his I-140 petition approved is a leading international expert and a pain specialist with special skills in Interventional Pain Procedures, Neuropathic Pain Management, Cancer Pain, and Palliative Cares. His research in the field of neuropathic pain treatments is unquestionably significant and is recognized on the international level. Our clients’ credentials include a medical degree from his home country, a two year study on Pain Management at a Pain Clinic, and another three years as Coordinator of that same clinic. In addition, we submitted our client’s curriculum vitae to outline their Education, Professional and Research Experience, Oral Presentations, Scientific Publications, Professional Association Memberships, Professional Development Courses, and Honors and Awards.

Another point discussed in our client’s case was the various organizations and places the individual has been invited to lecture. We demonstrated, through many exhibits, the organizations our client participated in as a member related to his field of work, as well as documents that show the various lectures and seminars our client spoke as an expert on his field of expertise.

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Ekaterina Powell from our office brings us up to date with this recent development. Aliens who have controlled substance convictions are generally deportable and ineligible for adjustment of status (with certain exceptions for simple possession of 30 grams or less of marijuana).

Whenever an alien enters a guilty plea or nolo contendere or admits sufficient facts to warrant a finding of guilt, for which the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty, the alien becomes deportable and inadmissible. See definition of conviction in 8 U.S.C. section 1101(a)(48)(A).

This definition of conviction leaves most of the aliens with simple possession convictions out of luck. These individuals cannot apply for adjustment of status through their immediate relatives U.S. citizens and may be deported from the United States even after years of being in lawful permanent resident status. The length of time that has passed since the entry of judgment does not matter for immigration purposes. Thus aliens that had drug convictions adjudicated years ago would be treated the same way for immigration purposes.

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As Lawyers who specialize in I-601 extreme Hardship Waivers, we often hear of concerns form family members traveling to Ciudad Juarez for Visa Interview. An I-601, Application for Waiver of Grounds of Inadmissibility, is filed to permit an alien who has been denied admission to the United States to gain admission as a lawful permanent resident or fiancé(e) under certain circumstances. This waiver is based on extreme hardship to United States citizen or lawful permanent resident relatives of the alien which would result if the alien’s inadmissibility cannot be waived.

Today we have an alarming message from the Consulate that we wanted to share with our readers. The U.S. Consulate General in Ciudad Juarez is issuing this Emergency Message for U.S. citizens in the state of Chihuahua (“Emergency Messages” were formerly known as “Warden Messages”). The Consulate has distributed the following message to our staff:

Mexican authorities have captured key members of the cartels active in Juarez. These successes also bring with them the potential for an increase in violence. The cartels may seek to retaliate and increase their attacks against rival cartel members, Mexican law enforcement and/or the public in general.

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On July 11, 2011, the Ombudsman’s Office recommends that USCIS take the following actions to improve the processing of employment authorization documents (EAD):

1. Establish methods at local offices to facilitate immediate resolution;

2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;

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We have recently won an incredible case under the National Interest Waiver Category for a challenged athlete who is also a motivational speaker. Attorney Andrew Desposito did a great job in this case. Andrew provides a great summary of this process for our readers.

The National Interest Waiver is a great way to bring an individual into the United States whose work can have an impact that is in the national interest. To apply for a National Interest Waiver, an I-140 petition must be submitted along with the proper documentation that meets the requirements of one of two categories. There are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien who has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.

In order to be an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability, one must show four things: That the Alien commanded such a salary demonstrating the exception ability, evidence of membership in a professional association related to such services, evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations, and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.

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Last month, the State of Alabama passed a law that was by far the strictest immigration bill passed in the United States since Arizona passed its bill. Under the new law, police must determine a person’s residency if they suspect they may be undocumented, schools must check students and parents’ immigration status and landlords cannot rent homes to undocumented immigrants.

In particular, Alabamians—including countless U.S. citizens and non-citizens who have permission from the federal government to remain in the United States—are subject to unlawful interrogations, searches, seizures, and arrests, which will result in racial profiling. This is because HB 56 mandates law enforcement officers to investigate the immigration status of any individual they stop, detain, or arrest when they have “reasonable suspicion” that the individual lacks immigration status. Individuals who may be perceived as “foreign” by state or local law enforcement agents will be in constant jeopardy of harassment and unlawfully prolonged detention and arrest by state law enforcement officers operating under HB 56’s new immigration enforcement mandates. And all Alabamians will be required to carry state-approved identity documentation in order to prevent lengthy investigations as to their status. These provisions violate the Fourth Amendment.

In addition to the potential illegal stops, public schools are also impacted by this bill. In particular, every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.

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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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