Visa Lawyer Blog

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The Department of State has released the new visa bulletin for July 2011 on June 9, 2011 which continues to bring cheers to Chinese and Indian nationals whose Priority Dates get benefited.

For the month of July 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward nearly five months for Chinese nationals (from October 15, 2006 to March 8, 2007), and also moved forward nearly five months for Indian nationals (from October 15, 2006 to March 8, 2007). In the EB-3 category, the cut-off dates moved forward from May 15, 2004 to July 1, 2004 for Chinese nationals and moved forward from April 22, 2002 to May 1, 2002 for Indian nationals.

For the month of June 2011, the EB-1 category was current for both Chinese and Indian nationals. In the EB-2 category, the cut-off dates moved forward more than two months for Chinese nationals (from August 1, 2006 to October 15, 2006), and moved forward more than three months for Indian nationals (from July 1, 2006 to October 15, 2006). In the EB-3 category, the cut-off dates moved forward from April 15, 2004 to May 15, 2004 for Chinese nationals and moved forward from April 15, 2002 to April 22, 2002 for Indian nationals.

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USCIS released the latest H-1B visa information on June 6, 2011. As of June 1, 2011, USCIS reported that 13,600 cap petitions had been filed and 9,300 spots for U.S. advanced degree holders have been filled.

On May 26, 2011, USCIS reported that 13,100 cap petitions had been filed and 9,000 spots for U.S. advanced degree holders have been filled. In Summary, from May 26 to June 1, about 500 cap petitions and 300 petitions for U.S. advanced degree holders have been filed.

We will be happy to assist you in your H-1B filing needs.

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The Immigration Law field is one of the most abused areas of law by scam artists, trying to pray on innocent Immigrants. We see such victims all the time.

Immigration officials are teaming up with federal and state prosecutors, the Federal Trade Commission, lawyers’ groups and immigrant advocate organizations in a new nationwide effort to combat an epidemic of schemes by people posing as immigration lawyers.

The campaign, which will begin in Washington soon, is an effort by the Obama administration to step up one form of assistance to immigrant communities, which have intensified their criticism of President Obama as they have faced a record pace of deportations in the last two years.

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Critical update to all of you H1B job changers. Under the H-1B portability provisions, an applicant for H-1B status may begin working for the sponsoring employer immediately upon the filing of the Form I-129 Petition for Alien Worker, provided that the applicant is a “nonimmigrant” and “was previously issued a visa or otherwise provided nonimmigrant status [under the H-1B regulations].” The latter phrase has been subject to varying interpretations within the legal community. The situation arises when a foreign national enters the U.S. in H-1B status, subsequently changes his or her status to another status, and then again seeks H-1B status at a later date. In the past, some attorneys have argued that the H-1B portability provisions should allow a foreign national in this situation to begin employment with the petitioning employer upon the filing of the H-1B petition.

U.S. Citizenship and Immigration Services (USCIS) has recently intimated that it will construe the H-1B portability provisions to apply only to those non-immigrants holding H-1B status at the time of filing the subsequent H-1B petition. This development stems from the return of tentative and final non-confirmations from the E-Verify system related to those foreign nationals who are currently in a non-immigrant status other than H-1B and who have filed an H-1B petition utilizing the portability provision.

In response to the reports of erroneous non-confirmations from the E-Verify system, AILA’s Verification Committee addressed E-Verify officials on this issue. AILA was informed that the non-confirmations issued in the situation of foreign nationals filing H-1B petitions while in a valid, non-immigrant status other than H-1B are final, and have been issued based on internal guidance from the USCIS Chief Counsel’s office. This guidance has not been released to the public and USCIS does not believe that this is a new interpretation of the H-1B portability provisions. USCIS is said to be working on AC21 regulations to clarify this issue.

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At a recent meeting with U.S. Customs and Border Protection (“CBP”) and AILA reps the following questions came up:

The regulations at 8 C.F.R. § 214.2(e)(19)(i) state that E visa holders may be admitted for an initial period of not more than two (2) years. It has been our understanding that E visa holders with valid E visas and passports valid for more than 2 years should be admitted for two years upon each entry, regardless of the expiration of validity of the visa. However, some CBP officers are admitting E visa holders only until the expiration of validity of their E visas.

Please confirm that, assuming no other adverse factors, E visa holders should be admitted for two years on every admission, and not be limited to the length of their visas.

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An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of inadmissibility. Waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA 212(h)) requires it to be established “that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)]. For the purposes of this memo the Application for Waiver of Grounds of Inadmissibility will be referred to as an I-601.

USCIS 5/9/11 policy memo on how USCIS processes requests to expedite the adjudication of Forms I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside of the U.S. The receipt notice template, Appendix 41-5, is attached following the memo.

It has been USCIS’s longstanding policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application. Consistent with this policy, an applicant may request that the adjudication of a Form I-601 be expedited. Requests to expedite in the Form I-601 adjudication context present unique challenges.

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Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. As of now, USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217.

Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district (San Diego, California) is intending to deny such applications.

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397 (AILA Doc. No. 10122752). 5 In the brief, the Solicitor General acknowledged at page 9:

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The recent increases in Requests for Evidence resulting from the Validation Instrument for Business Enterprises system, prompted USCIS to issue the following notice.

Due to the time-sensitive nature of agricultural work, U.S. Citizenship and Immigration Services (USCIS) expedites all H-2A “temporary or seasonal agricultural worker” petitions. However, some recent H-2A petitions have experienced unexpected delays due to Requests for Evidence (RFEs) resulting from the use of the Validation Instrument for Business Enterprises (VIBE). As delays in adjudication are especially burdensome for H-2A petitioners, we are providing an H-2A Optional Checklist as well as a Questions & Answers document to help petitioners ensure that their petitions are expeditiously processed. Additionally, USCIS will hold a public engagement in the near future to provide USCIS and H-2A employers, associations and agents the opportunity to discuss best filing practices. Until such time, USCIS is temporarily suspending the use of VIBE in the H-2A Program. Use of VIBE will resume after 45 days of the date of this USCIS Update on July 18, 2011.

USCIS is taking measures to carefully review all pending H-2A petitions filed prior to this clarification notice.

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Generally, all individuals born in the United States and subject to its jurisdiction of the United States are citizens (e.g., children of diplomatic officials, etc.). Still, other individuals born outside the United States may claim United States citizenship derivatively from a parent who at the time of the individual’s birth was a United States citizen. The legal requirements for Derviative Citizenship are extremely complex.

In order for an individual to apply to become a naturalized U.S. citizen (USC), s/he must be age 18 or older. Thus, in the typical situation of a family living in the United States as lawful permanent residents, the minor children will not be eligible to file for naturalization with their parents. In many cases, these minor children do not need to request U.S. citizenship. Rather, it is automatically conferred when either parent naturalizes, if certain requirements are satisfied.

The laws regarding the derivative acquisition of U.S. citizenship by minor children were broadened by the Child Citizenship Act of 2000 (CCA). This law became effective February 27, 2001, and remains effective as of this writing. Under current law, children under 18 automatically acquire U.S. citizenship if three requirements are met.

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ICE officials are not happy this morning. Illegal immigrants arrested for petty crimes won’t be held in jail longer than necessary in San Francisco, even if federal immigration agents may want them detained for possible deportation.

Instead, starting Wednesday, deputies will treat those eligible for release just like U.S. citizens: They will be cited to appear in court. The new policy is his attempt to comply with a city law that prevents police from aiding federal authorities in non-felony crimes and a U.S. law that requires authorities to share fingerprints with immigration agents.

Under this policy, illegal immigrants who commit misdemeanors, such as disorderly conduct, trespassing or shoplifting, will not be held while the U.S. Immigration and Customs Enforcement (ICE) checks their status through a fingerprinting monitoring program.

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