Visa Lawyer Blog

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DOS released the Visa Bulletin for August 2008. In addition to the 3rd Preference category, the Other Workers category is now unavailable.

EB2 category is current for all countries, except for India and China. However, the India and China cutoff date has moved forward to June 1, 2006. This is amazing forward movement, as it is the most favorable cutoff date in EB2 for either country since the July 2007 Visa Bulletin. Individuals from India and China who missed the I-485 filings during July 2007, may have the opportunity to file their I-485s in August 2008. The eligibility to file would apply to those who have EB2 priority dates prior to June 1, 2006 and are otherwise eligible to file the I-485.

Check the most recent visa bulletin here

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The American Immigration Lawyers Association released an excellent piece on the above referenced topic. Please read and let me know your thoughts. Let the debate begin!

America’s economy is flailing, and 78 million baby boomers are nearing

retirement, at which point they will leave the workforce to receive massive

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I received so many emails following our most recent I-601 waiver posting about waiver success. Readers were encouraged by our clients success and learned how to plan a successful waiver. But what to do when the waiver is denied. Are there any options? I have provided below an extract from Laurel Scott’s excellent article on waivers. Laurel like myself, is one of a few immigration lawyers specializing in this complex area of law.

So what to do when your I-601 waiver is denied?

An appeal following an administrative denial to an Application for Waiver of Grounds of Inadmissibility must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO does not like to overturn the discretionary decision on I-601 waivers. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable.

Once an appeal is filed, and forwarded to the AAO in Washington, DC, it is out of the hands of the USCIS office that denied the case. The OIC does not have more access to information about the appeal than the attorney. Direct inquiries to the AAO, not the office that denied the case.

Due to the lengthy processing time for appeals (can be 22 months or more) and low chance of success, consider refilling a de novo (new) I-601 packet instead, especially if the client attempted the first I-601 by himself and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Even starting over with a new immigrant visa petition may get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.

For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.

The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.

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Obama knows how important is the Latino vote, and he makes it a priority to meets leaders of this powerful voting Group. Obama addressed National Council of La Raza convention, which has attracted more than 20,000 people to the San Diego Convention Center. He promised today he would make immigration reform a top priority of his first year in office if he is elected president.

He also said:

“I think it’s time for a president who won’t walk away from something as important as comprehensive reform just because it becomes politically unpopular,” the Illinois senator said. “I will make it a top priority in my first year as the president of the United States of America.”

Read more here….

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We report on a recent Memo from Donald Neufeld, Acting Associate Director, Domestic Operations, to USCIS field offices on changes to the naturalization interview process. As you all N400 interviews are taking too long to schedule, and part of the problem is the time it takes to process such interviews at the local offices. USCIS officials hope that the new policy will improve things.

For example, one difference from current practice is the sequence – that the English and civics tests can be administered before the interview following the pre-examination check-in process, as opposed to during the actual interview. The tests must be administered by designated and trained personnel. The test questions, test administration, reasonable accommodation requirements and standards for passing remain unchanged.

We uploaded the actual internal Memo here so you can review all the up coming changes Download file

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The Department of Labor continues to fight against immigration service providers. First it was the largest Law Firm in America and now a software provider. DOL announced the debarment of an immigration software company, having determined that the company willfully provided false or inaccurate information when applying for permanent labor certifications, and engaged in a pattern or practice of failing to comply with the terms of the application, ETA Form 9089.

“Debarring this company for filing false information demonstrates the department’s

ongoing commitment to safeguard the integrity of the permanent labor certification

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We all know that Hispanics will play a significant role in this year’s presidential race between Barack Obama and John McCain. The Census Bureau reports an 18 percent jump in Hispanic voters in 2006, compared with the previous election. They are also a big part of the population in key swing states, such as Florida, New Mexico, California and Colorado.

And because this year, neither Obama nor McCain has a lock on Hispanic voters, even if it appears otherwise at the moment. Polls show that among Hispanics, Obama is leading by a 2-to-1 ratio. The presumptive Democratic nominee benefits from what is for most Hispanics, with the exception of Cuban-Americans, a near-hypnotic loyalty to the Democratic brand.

San Diego based CNN writer Ruben Navarrette Jr. has an excellent article on this in todays UT paper. Read more here….

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An anxious and worried couple consulted with me recently. The spouse is American and the Husband Filipino who we will call Mr. M.

They presented me with a decision from the local Immigration office intending to deny their Marriage Adjustment Petition. They were given 30 days to file an appeal. The issue in this case was that the immigration officer determined that there was fraud in this case, and hence Mr. M doesn’t qualify for the conditional Green Card. The couple explained that the officer never looked at any of their documents. Rather, she interviewed them separately and determined her conclusions based on the answers they provided.

After reviewing the decision, it was clear that the officer never even looked at the numerous documents the couple collected together. She also ignored the medical condition that the US Citizen spouse was under. The wife suffered from a serious heart condition that affected her memory ability to communicate clearly.

We immediately got on top of the case. In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493. Evidence to be considered by the reviewer officer includes evidence of combined financial assets and liabilities, length of time of cohabitation, and other relevant evidence. Chand v. INS, 1997 U.S. LEXIS 19141

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A few days ago USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 1, 2008, 17,305 petitions have been counted towards the 33,000 cap for the first half of fy 2009. For the lawyers filing H2B visas and employers needing them badly, these are bad news.

I expect all H2B visas for the first half of the year (starting October 1) to be gone by mid August, if not earlier. Those that have filed their Labor Certifications already, make sure to work with the local SWA’s and Department of Labor to make sure smooth processing of your files. Also, make sure to have your I-129 packages ready, so that with the LC’s are approved you will be first to file.

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Due to the large number of visa refusals (mostly non immigrant) in many Consulates around the world, we can not stress to clients to be honest about past visa refusals.

For more than 25 years, consular officers have been noting visa refusals by stamping the back of an applicant’s passport with “application received.” Modern technology makes this step no longer necessary. The refusals are being tracked by the DOS, DHS and other federal agencies, just in a more modern manner than the ink stamp in a passport.

When filing for a nonimmigrant visa application, Form DS-156 of the DOS asks in question 31 whether the visa applicant has ever been refused a visa. If the answer is yes, it is important to provide information as to when, where, and the type of visa that was denied or refused. Not providing accurate or truthful information could result in further refusal based on fraud or material misrepresentation. Potentially, such findings could permanently prevent an individual from obtaining a visa and entering the United States. Even though certain waivers are allowed, obtaining an approval of a waiver for a nonimmigrant or immigrant visa is discretionary and not routine. So be honest and you will be in a better position.