Visa Lawyer Blog

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Many clients have been calling my office in the past week or so, they have been reporting denials of adjustment of status applications at the San Diego District Office for applicants, that entered under the Visa Waiver program and later overstayed. The overstay took place before marriage to a US Citizen and filing the adjustment of status case.

Is this is a new trend and change in procedures, yes it is! An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:” To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview.” The email was not very long but that was the general idea.

But why and why now? Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S.

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According to KPBS, A bill to strengthen the U.S.-Mexico border could be a mixed blessing for San Diego. That’s because paying for more for border security will require a hike in H1B visas.

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker can apply for a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or must leave the US.

The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be “of distinguished merit and ability”.) Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field.

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The Visa Waiver Program (VWP) enables nationals of 36 participating countries to travel to the United States for tourism or business (visitor [B] visa purposes only) for stays of 90 days or less without obtaining a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security’s US-VISIT program.

If you are a national of a Country on the US visa waiver scheme you will from 8 September 2010 have to pay a fee of $14 under the Electronic System for Travel Authorization (ESTA). From January 2009 everyone entering the US under the visa waiver scheme needs to apply under ESTA. So far there has been no fee for applying under ESTA.

ESTA takes up to 72 hours (3 days) to process and is valid for up to two years. So you should make sure that you leave enough time for the processing of your application. If you are thinking of visiting the US in the next two years and are a national of a visa waiver Country you should consider applying now and so avoid the new fee.

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After some procedural stumbling, today the U.S. Congress passed a $600 million immigration enforcement supplemental appropriations package for additional border enforcement funding through the fiscal year 2011. The package was sponsored by a group of senators and representatives who had previously insisted on holding the line for a comprehensive approach to immigration reform. Having taken an enforcement-first step, the leader of that group, Senator Charles Schumer, said “Hopefully colleagues on both sides of the aisle will [now] come together and we can pass comprehensive reform”.

Any effective, long-term solution to the immigration problem must: 1) require the undocumented population to come out of the shadows and earn legal status; 2) ensure that American businesses are able to hire the workers they need to help grow our economy while protecting U.S. workers from unfair competition; 3) reduce the unreasonable and counterproductive backlogs in family-based and employment-based immigration by reforming the permanent immigration system; and 4) protect our national security and the rule of law while preserving and restoring fundamental principles of due process and equal protection.

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The U.S. House of Representatives has passed a bill to steeply hike U.S. visa fees for skilled workers to raise $600 million in emergency funding to help secure the U.S.-Mexico border.

Senators passed a similar plan last week. But since the House version passed in a voice vote on Tuesday is slightly different it will go back to the Senate for final congressional approval before being signed into law by President Barack Obama. The measure proposes to raise the fees on H-1B visas for companies who have more than 50 per cent of their employees on such visas for highly skilled professionals from $320 to $2,320. Similarly the fee on L visas given to multi-national transferees from $320 to $2,570.

The additional fees from the popular H-1B and L visas programmes would be used to build operating bases and deploy unmanned surveillance drones to better secure the U.S.-Mexico border, one of the rare issues both Democrats and Republicans have agreed on. The legislation targets companies that lawmakers say “exploit” U.S. visa programmes. A summary of the Senate version listed Wipro, Tata, Infosys and Satyam as such firms, saying that they fly thousands of employees to the U.S. to work at as technicians and engineers for their clients.

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The Department of Labor (DOL) issued new PERM FAQs on August 3, 2010. The issues addressed by DOL in this round of FAQs include expedite requests, how to document the use of an employee referral program, unsolicited documentation and what constitutes a “business day” for purposes of posting the Notice of Filing. Within the FAQs, DOL states the following:

* Expedite Requests – DOL clarifies that the Office of Foreign Labor Certification (OFLC), as a matter of long-standing policy, will not accept requests to expedite PERM applications;

* Employee Referral Programs (ERP) – DOL states that an employer can document its use of an ERP with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered. The employer must document the existence of the ERP, and that its employees were aware of the vacancy of the specific position for which certification is being sought. This can be achieved through posting on the employer’s website. However, the physical Notice of Filing shall not be sufficient for this purpose;

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The local San Diego USCIS office suggests that certain remedies may be available for military families facing the problem of ineligibility to adjust status because of unlawful entry by a family member seeking adjustment of status. Most often the situation occurs when a United States citizen service member’s spouse entered without inspection and thus cannot adjust status. Current way to fix the status is via Ciudad Juarez waiver process (I-601 waiver application).

One potential remedy is “Parole in Place,” where the District Director in San Diego, Mr. Paul Pierre, can parole the alien, who then will be eligible to adjust status. Paroling only cures the issue of admission or parole under INA § 245, not other inadmissibility issues. To seek Parole in Place, address the request to Mr. Pierre. Include the following:

1. Form I-131 (but it does not need to be paid for when applying)

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On 8/5/10, with hours left before the beginning on the August recess, the Senate passed a $600 million emergency spending bill aimed at increasing border security. The bill, titled the Emergency Border Security Supplemental Appropriations Act of 2010, was passed by a voice vote.

Senator Schumer (D-NY), along with several Democratic colleagues, introduced the Border Security Emergency Supplemental Appropriations Act of 2010 (S.3721) and used it as a substitute amendment to H.R. 5875, a bill passed by the House of Representatives on 7/28/10. Further action is required before H.R. 5875, as passed by the Senate, can be sent to President Obama’s desk for signature.

It is unclear at this point if the House of Representatives, which is set to return for a short two day session on 8/09/10, will take up the Senate measure or whether they will wait until September. Department of Homeland Security Secretary Napolitano released a statement urging the House of Representatives to pass the bill.