Visa Lawyer Blog

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Here is a recent update from our local AILA office. All USCIS Application Support Centers (ASC’s) now operate Monday – Friday from 8 a.m. to 4 p.m. For our district that includes the Chula Vista, San Marcos, and Imperial ASCs.

Previously, the ACS’s accommodated special situations like requests for earlier biometric capture or accommodating people who missed their appointments on Wednesdays and Saturdays. Now, the best time to walk-in because of these kind of issues is Monday through Friday between 2:30 and 3 p.m. This includes Wednesday, as Wednesday is no longer a light schedule day.

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On October 20, 2009 the U.S. Senate voted to pass the Department of Homeland Security Appropriations Bill Conference Report that contained a provision to end the widow penalty. The House of Representatives previously voted to pass the bill. The bill became Public Law Number 111-83 upon President Obama’s signature of October 28, 2009.

In the past the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

The new provision does not directly address the government’s definition of marriage, but it allows foreigners married to Americans for less than two years to submit their own petition for residency within two years of the spouse’s death, as long as they have not remarried and can prove a good-faith marriage.

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The HIV ban removal will be remembered as a historic decision, through this final rule, the Centers for Disease Control and Prevention (CDC), within the U.S. Department of Health and Human Services (HHS), amended its regulations to remove “Human Immunodeficiency Virus (HIV) infection” from the definition of communicable disease of public health significance and remove references to “HIV” from the scope of examinations for aliens. Prior to this final rule, aliens with HIV infection were considered to have a communicable disease of public health significance and were thus inadmissible to the United States per the Immigration and Nationality Act (INA).

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

Immigrants for Whom the Regulation Applies

The provisions in 42 CFR part 34 apply to the medical examination of :
(1) aliens outside the United States who are applying for a visa at an embassy or consulate of the United States;
(2) aliens arriving in the United States; and
(3) aliens required by the U.S. Department of Homeland Security (DHS) to have a medical examination in connection with determination of their admissibility into the United States; and
(4) aliens who apply for adjustment of their immigration status to that of lawful permanent resident.

An Immigrant seeking permanent residence, whether through an immigrant visa or asylee status, or through an adjustment of status must undergo a medical examination to determine whether the alien is inadmissible on medical grounds. Aliens seeking admission as refugees also undergo medical examinations overseas. Overseas examinations are conducted by panel physicians designated by the Department of State.

Applicants for adjustment of status to lawful permanent resident are required to have a medical examination conducted by a civil surgeon designated by U.S. Citizenship and Immigration Services within DHS. Prior to this rule HIV infected applicants were barred from Adjusting Status unless a hardship waiver was filed. Only applicants with a qualifying US citizen relative could file for this waiver. Many same sex applicants without a qualifying relative, could not adjust status under the previous legislation. This change will bring a historic relief to thousands of applicants infected with HIV, that were not eligible for any waivers to adjust.

If you are an HIV intending immigrant, please consult an experienced immigration attorney about your options.

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It is true to say that the current economic situation in our country is directly related to the problems we have in our Immigration system. In addition to the weak economy, companies have stopped filing for H1B visas in the face of anti-immigrant sentiment in Washington and rising costs associated with hiring foreign-born workers.

Mirian Jordan from the Wall Street Journal published an excellent article on this matter. She states:

The sagging economy, which has pushed U.S. unemployment to 9.8%, has crimped expansion in the technology sector, traditionally the biggest user of the H-1B program. Usually, all visas are allocated within a month or two from April, when applications for the following fiscal year are first accepted. But this year, six months later, “you can still walk in with an application and you’re still highly likely to get approved,” said R. Srikrishna, senior vice president for business operations in North America for HCL Technologies Ltd., an Indian outsourcing company.

The cost and bureaucracy of applying for H-1B visas is another deterrent. Lawyers’ fees, filing fees and other expenses can easily reach $5,000 per applicant. Immigration lawyers say some would-be employers are put off by a crackdown on fraud. U.S. Citizenship and Immigration Services, which administers the H-1B program, has been dispatching inspectors on surprise company visits to verify that H-1B employees are performing the jobs on the terms specified. The fraud-detection unit in coming months is expected to inspect up to 20,000 companies with H-1Bs and other temporary worker visas.

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US is finally joining the Civilized world as Obama lifts the 22 year long HIV ban on infected visitors coming to our country. Visitors who have HIV would be allowed to travel and immigrate to the United States.

The president signed the Ryan White HIV/AIDS Treatment Extension Act of 2009 at the White House Friday and also spoke of the new rules, which have been under development more more than a year.

The regulations are the final procedural step in ending the ban, and will be published Monday in the Federal Register, to be followed by the standard 60-day waiting period prior to implementation.

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The November 2009 Bulletin brings mixed news. The State Department’s Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference “certain religious workers” category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. All individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

This Bulletin brings excellent advancement in the family immigration categories, especially in the Family 1st and Family 2A categories and, for Mexico, in the Family 3rd category, what a relief. Mexico advances to 1 May 1992. The Philippines advances one month to 22 October 1991.

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For most Lawyers handing H1B cases, the problem with the Labor Condition Application (LCA) system has become a nightmare. Some cases take almost 14 days to be resolved and the FEIN denials are completely unreasonable.

Finally, the USCIS Ombudsman release a set of recommendations to handle the recent problems.

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to

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USCIS has revised Form I-601, Application for Waiver of Grounds of Inadmissibility to make it easier for applicants to complete. Applicants may now select from a list of grounds of inadmissibility on the form itself and mark all which apply to them in order to request a waiver. This was confusing to many applicants in the past as they were not sure what to type in this section.

In addition to the list, the form includes a section where applicants can describe, in their own words, why they believe they are inadmissible. Again, this is something that was not so clear in the previous version of the form. In the previous edition of Form I-601, information about grounds of inadmissibility could only be found in the form’s instructions.

Please note that USCIS will continue to accept the previous version of the form, dated 10/30/08 Y, through November 20,2009. Beginning November 21, 2009 USCIS will only accept the revised Form I-601, dated 04/06/09 N, and will reject all requests using previous editions of the form. Concern is that Applicants using notarios and other consultants, may be rejected as these non lawyers may not be informed of the new procedures.

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The Widow penalty debate has been going on for years. This week the problems of widows have come to an end. The Senate approved a measure on Tuesday that would end what has become known as the “widow penalty” — the government’s practice of annulling foreigners’ applications for permanent residency when their American spouses die before the marriage is two years old.

The measure, which passed 79-19, was contained in a conference report that accompanied an appropriations bill for the Department of Homeland Security. The House of Representatives passed the conference report last week. President Obama is expected to sign the bill into law.

While the foreign spouse of a United States citizen may be eligible for residency under American law, the government has argued that the spouse’s death before the two-year mark ends the marriage, canceling the foreigner’s right to be considered for residency and opening the door to deportation.

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We can all laugh to a good joke form time to time, but this story is not funny at all. Target Corp., based in Minneapolis, has apologized for selling a Halloween costume that came under fire for its “illegal alien” theme.The company said it was sorry for selling the $39.99 costume that included an orange jumpsuit emblazoned with the words “illegal alien,” a large imitation green card and a space alien mask.

Read more here…