Visa Lawyer Blog

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According to ComputerWorld President-elect Barack Obama’s leading choice to be secretary of the Department of Homeland Security, Arizona Gov. Janet Napolitano, has been a strong advocate of increasing H-1B visas — a stance that could turn out to be a major issue during her confirmation.

Napolitano was one of 12 governors who sent a letter in September 2007 to congressional leaders in both parties urging an increase in the visa cap. “Until we are able to address this workforce shortage, we must recognize that foreign talent has a role to play in our ability to keep companies located in our state and country; and therefore, need to ensure the increase availability of temporary H-1B visas and permanent residency visas (green cards),” the governors wrote.

We can only hope that the new administration will take a proactive step towards increasing the H1B cap, a much needed relief at this time.

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Many of our readers ask when comprehensive immigration reform will come up before Congress, Immigration Daily has learnt that it will come to the floor early in 2009 though it is not currently planned for Mr. Obama’s first 100 days.

Sen. Menendez and Rep. Gutierrez are on the warpath for early passage of immigration reform in the 111th Congress. Sen. Menendez had the courage to singlehandedly block a five year extension of E- Verify, and will doubtless push for a significant immigration benefits downpayment before March 6th when E-Verify is set to expire. Rep. Gutierrez and the House Hispanic caucus successfully blocked immigration benefits legislation in the 110th Congress to ensure continued support for immigration reform.

“Immigrants are affected by the economy, the war. . . . But immigration reform is a defining issue,” said Chung-Wha Hong, executive director of the New York Immigration Coalition. “It was a threshold issue.”

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At the request of our readers, we are providing more information about the above referenced process. Although it may seem to be simple, we suggest you consult a qualified immigration attorney before filing the application to become a permanent resident based on marriage to a US Citizen.

Step 1:

1. U.S. Citizen Petitioner Completes and Signs the Following USCIS Forms:
Form I-130 – Petition for Alien Relative
Form G-325A – Biographic Information
Form I-864 – Affidavit of Support
Lawyer’s Tip:
• Always check USCIS website at www.uscis.gov for the most recent version of the forms or check with our website for the most recent news and updates.

2. Alien Spouse Completes and Signs the Following USCIS Forms:
Form I-485 – Application to Register Permanent Residence or Adjust Status
Form I-765 – Application for Employment Authorization
Form G-325A – Biographic Information
Form I-131 – Application for Travel Document – Optional
Form I-693 – Medical Examinations of Aliens Seeking Adjustment of Status
Lawyer’s Tip:
• If the Alien beneficiary overstayed their visas, form I131 can not be used and the Alien must not leave the country until the adjustment of status process is complete.

• Medical examinations can be performed only by approved USCIS doctors, please check our website for a national link to approved USCIS doctors.

3. Gather the documents following the provided checklist
4. Make money orders payable to “Department of Homeland Security” or USCIS.

Lawyer’s Tip:
• You can make one money order for the entire amount. For example a complete case will be $1365.

5. Make a complete photocopy of every form and document that you send to the USCIS for your own records. Do not send original documents to the USCIS (e.g. your passport, I-94, marriage certificate, etc.).

6. Mail or Overnight the package certified return receipt via the U.S. Postal Service, FedEx, etc. For Mail, send the complete application to:
USCIS Lockbox Addresses:
For United States Postal Service (USPS) deliveries:
USCIS
P.O. Box 805887
Chicago, IL 60680-4120
For private couriers (non-USPS) deliveries:
USCIS
Attn: FBASI
131 South Dearborn – 3rd Floor
Chicago, IL 60603-5517
Step 2:

1. The USCIS will contact you within 2 weeks and will mail you all the case receipts. At that point your status will change and you will be considered adjusting your status to that of a US resident.

2. Next step is your finger prints appointment.

3. You should be getting the work permit in 90 days or so. If the card is not delivered, you can make an inquiry with the local office via infopass appointment.

Advance parole applications or travel permit should be processed in 90 days as well. This will give you permission to re-enter the U.S. after travel abroad.

4. Next step is your Marriage visa interview, they usually notify the applicants 4 weeks to 3 months in the future.

Step 3:

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At the interview, you are to present the forms and documents the USCIS has requested, if any. They will ask you some basic questions (see our interview questions section) and upon approval place the alien spouse in Conditional Permanent Residence Status. The alien spouse will remain in this conditional status for 2 years. Within 90 days of the end of the 2-year period, you may file to have the conditional status removed, provided you are still married. File USCIS Form I-751 Petition to Remove the Conditions on Residence. When this is approved (6-12 months) you will be a Permanent Resident of the United States.

Lawyer’s tip:
• Make sure to bring duplicate copies of all important documents, such as tax returns, joint bills, bank accounts, etc. Sometimes the officer would like to keep extra copies.

• If the US citizen sponsor’s income fell below the required guidelines be prepared to provide co sponsor affidavit of support
• In case the officer decides to separate the couple, stay calm and do not argue woth the official
• Come prepared and organized, dress professionally.

Read more about the Marriage Interview here..

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The following new regulations may be affecting some of the richest immigrants among us. Private Jet owners. Private jet owners have an average annual income of $9.2 mln and a net worth of $89.3 mln. The average age is 57 years old. 70% of them are men. So far they enjoyed the good life, coming and going into the US as they please. No more.

U.S. Customs and Border Protection (CBP) published a final rule requiring that private jets to provide advance notice of their intended arrival or departure, and submit manifests of the persons on board. The new process is similar to the one currently in use by commercial aircraft and will standardize advance notice procedures for all CBP airports of entry.

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There is currently a shortage in the United States of nurses, physical therapists and other healthcare workers. This blog post answers questions about temporary and permanent immigration options for nurses and physical therapists.

Work Visas for Nurses

Some nurses could qualify for H-1B visa status if their positions required at least a bachelor’s degree. However, many nursing positions do not require a bachelor’s degree, making the H-1B visa category somewhat difficult to obtain.

Many prospective U.S. employers apply directly for a green card for foreign nurses because there is no requirement to first obtain a labor certification from the Department of Labor. The labor certification process, which requires a very extensive test of the U.S. labor market, has been waived for professional nurses. Thus, applying for a green card option for a foreign nurse may be the preferred option.

Work Visas for Physical Therapists

Physical therapists are generally eligible for an H-1B visa, since the bachelor’s degree is generally a standard requirement for that occupation in the United States. The H-1B visa is available when the occupation requires a bachelor’s degree. If you are a physical therapist in another country, you must first submit your educational credentials to a U.S. state therapy board for a temporary license or permit. (A list of state therapy boards is available on the Federal of State Boards of Physical Therapy website). Once you have a permit, you can apply for an H-1B visa to work in the United States. Once you enter the United States, you will have to take the state licensing exam, and then renew your H-1B visa.

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International Adoptions is an extremely complex area of law that changes rapidly. According to the AP the number of foreign children adopted by Americans fell 12 percent in the past year, reaching the lowest level since 1999 as some countries clamped down on the process and others battled with allegations of adoption fraud.

Figures for the 2008 fiscal year, released by the State Department on Monday, showed 17,438 adoptions from abroad, down from 19,613 in 2007. The all-time peak was 22,884 in 2004.

By far the biggest drop was for adoptions from China, which fell to 3,909 from 5,453 in 2007 and a peak of 7,906 in 2005. Among the factors: a rise in domestic adoptions as China prospers and tighter restrictions on foreign adoptions that exclude single people, older couples, the obese and those with financial or health problems.

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ILW.com recently published an interesting article by a former USCIS officer stationed at the London US Embassy, working on I-601 waivers. The question we all ask is whether officers exercise discretion when adjudicating 601 waivers, or are they following the law with respect to the extreme hardship standard.

Officer Heller explains: “When I was adjudicating I-601 waivers at the US Embassy in London my colleagues and I used to theorize on the element of discretion in waiver determinations. Some adhered to a strict constructionist view (discretion only comes into play once extreme hardship is established), others favored what I call a holistic approach (discretion, in a general sense, allows for a contextual assessment of hardship factors).”

He further stated: “In my experience, the holistic approach to 601 waiver adjudication was, in effect, a means of ratcheting the extreme hardship standard one way or another. As such, an individual deemed inadmissible on account of an overstay of one year and two months might enjoy a more relaxed standard than someone who overstayed five years. Similarly, an applicant who worked as a nurse might have an easier time of establishing extreme hardship than, say, a web designer (n.b. I said “applicant” and not “qualifying family member”). Considerations such as those suggested above are not really related to extreme hardship, but they are clearly relevant for assessing discretion.”

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According to NPR, it’s not likely, and if nothing else that’s because of the economy. Labor economist Vernon Briggs of Cornell University says it’s harder to argue for legalizing millions of low-skilled immigrants when many more low-skilled Americans are likely to find themselves out of work.

“The unemployment rates for unskilled workers without high school diplomas, or only a high school diploma, are the highest in the United States,” says Briggs. “There’s no indication that our labor force is in desperate need of unskilled, poorly educated, non-English speaking workers.”

Supporters of legalization see it differently, arguing that the best way to make sure immigrants do not pose an unfair threat to American workers is to make the immigrants legal. But even ardent immigrant advocates admit the economic collapse does change something else.

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It may become even harder to travel to the US if you are from a visa waiver country. The U.S. Department of Homeland Security announced that beginning Jan. 12, 2009, eligible citizens or nationals from all Visa Waiver Program (VWP) countries must obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States under the VWP. DHS formally announced the addition of seven allies to the list of countries authorized to participate in the VWP. The seven countries are the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia.

DHS state that required authorization through ESTA will substantially strengthen the security of the VWP by providing the department with the capability to conduct advance screening of VWP travelers. I feel that this will cause substantial delays and complications for travelers from such countries.

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