Visa Lawyer Blog

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The U.S. consulate in London has posted a new comprehensive set of procedures for applying for E-1 and E-2 visas on its web site.

The UK produced the largest number of E2 investors in the past several years and we can see the results with huge backlog at the Embassy in London. The US Embassy in London has seen a dramatic increase in the number of applications for E-2 visas in the last decade. One cause of this increase has been the strength of the pound against the dollar; another has been the growth in value of UK real estate. Combined, these factors have resulted in large number of British investors with substantial capital who seek to invest in the United States. The US government welcomes such investment. However, it is important for investors to understand the purpose of the E-1 and E-2 visas so that they do not risk losing time and money in a lengthy visa process which may not result in an approval.

The Treaty Trader and Treaty Investor visas were established to facilitate and enhance economic interaction between the United States and other countries. They were not intended to serve as a means for foreigners to retire or merely reside in the United States. U.S. law (see paragraph 101(a)(15)(E) of the Immigration and Nationality Act) explicitly states that E-1 visa holders must enter “solely to carry on substantial trade” and E-2 holders “solely to develop and direct the operations of an enterprise” in which he or she has invested. Moreover, these visas are non-immigrant visas and thus temporary. Treaty trader/investor visas can be renewed or extended only if the investment or trade continues to meet all applicable requirements of U.S. immigration laws and regulations.

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The American Immigration Lawyers Association has provided us with the following information about when family-based adjustment applications under INA sec. 245 get placed in the interview queue, in light of the Feb. 4, 2008 memo from the Immigration Service regarding Name Check Delays: Assuming that an application is otherwise ready to be placed into the interview queue, and the only item remaining is the name check, then the application will be placed in the queue in time for the application to be ready to be scheduled for interview as of the 180th day.

If the application is not ready to be placed into the interview queue (for example, if the biometrics have not been taken), then the application will not be placed into the queue, even if the name check has been completed. USCIS reminds the public that the Field Offices schedule cases when they have available interview slots. The automated system by which Field Offices schedule interviews automatically schedules applications on a first-in, first-out basis (based on the date the filing was received at USCIS, which usually would be when received at the Lockbox), once the NBC identifies a case as interview ready.

I hope the new policy will streamline the process and will speed up the adjustment of status interview scheduling and adjudications.

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As some of you may know, immigrants who entered the country illegally without a visa or without inspection may not seek Green Cards (Permanent residency) from inside the United States. Even if they have a U.S. citizen spouse or parent to petition for them, it will be difficult unless the pending petition was filed before April 30,2001 (when the Section 245i law was still active). Instead, they must leave the United States to obtain an immigrant visa at a consulate abroad. But once they leave the country, they generally trigger a three-year or 10-year bar to re-entering the country.

This was the topic of my most recent radio interview, where I discussed the above referenced issue with two of my clients present in the studio with me. The wife, who was brought illegally to the the US at the age of 5, hoped to obtain permanent residence based on her marriage to a U.S. citizen, but has to return to her home country to apply for an immigrant visa because of her unlawful entry into the United States. We prepared the I-601 waiver application for her and established, among other factors, that her husband will suffer extreme hardship if his wife is not allowed to return. Her I-601 application will be reviewed in April and we will keep our readers and radio listeners posted.

Listen to the show here

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Many of our marriage visa clients and prospective clients, often want to know what actually happens at the final Marriage adjustment of status Interview. I try to describe and explain as best as I can, and often wish I could actually record the interview, but of course we are not allowed. So I have decided to take one of my Law Clerks, Andrea with me to one of the interviews. At the conclusion of the interview, she wrote in detail the sequence of events:
The immigration office in Chula Vista opens at 7:00am. Even that early on a Thursday morning there is already a long line at the door. Since our client has an appointment, we are able to walk right in after first showing identification and passing through security. The office itself is bright and bustling with televisions showing the news and signs in different languages on the walls. There is an edge of nervousness in the air as people apply for or wait on the results of their visa and citizenship applications.

As we sit in the waiting area, the attorney prepares his client for her interview. She has applied for a green card based on her marriage to an American citizen. This interview will determine whether she is approved or denied. The attorney explains what the interview will be like and what types of questions the interviewer will ask. Most of the questions will be about the couple’s marriage and relationship. It is important for the interviewer to see that the marriage is based on a real relationship, and is not just a scheme to obtain citizenship. One last check to make sure all the documents are in order, and we are called to the interview room.

Our interviewer has a reputation for toughness. He is stern, direct and gets straight to the point. He asks for documents showing evidence of the couple’s shared life, in this case a bank statement from a joint account. He asks for photos of the couple’s wedding, one photo of the priest performing the ceremony and one group shot of the whole family. He staples the photos into his file with the rest of the documents. The interview itself has two parts. For the first part, the interviewer asks specific questions to both husband and wife. How did you two meet? Where did you go on your first date? When did you move in together? How did you propose to her? He asks the husband, “How do you plan to support your wife?” and looks over financial documents.

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A few days ago, USCIS issued an Update announcing revised filing instructions for Form I-130, Petition for Alien Relative. As many of you may know, Form I-130 is the most common form to be used when filing a relative petition. Unlike immediate relative (Parents and Spouses) petitions that are normally files with the Chicago Benefits Center, all other relative categories (brother/sisters, children of USC’s over 21, spouses of US residents, etc), used to be filed with one of the 4 service centers (California, Texas,Vermont, and Nebraska).

Effective immediately, all petitioners filing stand-alone Form I-130s must file their petitions with the Chicago Lockbox instead of a USCIS Service Center.

Under the new rules, all stand alone I-130 petitions must be filed at the following address and only at this address:

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The government is not making it any easier for employers these days. Attorney General Michael B. Mukasey announced higher civil fines against employers who violate federal immigration laws. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase by as much as $5,000. The new rule will take effect on March 27, 2008, and will be published in the Federal Register early next week.

Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

I suggest that all employers concerned with this rule, review all internal hiring practices, update all I-9 forms and verify, and most importantly set up an immigration policy in the work place.

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For those of you that have been following my FBI name check updates and providing such a positive feedback. Thank you. Here is the recent update from our local office but this will apply anywhere in the country:

As members may know, all persons who apply for citizenship or LPR status are subjected to a fingerprint check as well as an FBI name check procedure. The fingerprint part of that process is normally resolved within 48 to 72 hours. The name check process, by contrast, can take anywhere from a few weeks to a few years to resolve.

In order to reduce the administrative burdens caused by the sharp increase in litigation caused by the old policy, USCIS has changed its policy for adjustment of status applications through a Memo from Associate Director Michael Yates on February 4, 2008. Where an adjustment of status application is otherwise approvable and the FBI name check request has been pending form more than 180 days, the adjustment application shall be approved. If adverse information is obtained after the case is approved, USCIS may move to rescind the adjustment approval and initiate removal proceedings.

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Due to the recent influx in inquiries about this Immigrant visas, I have decided to post a little summary and updates.

The EB-5, Green Card through investment, was created to promote investments in businesses and to create and preserve jobs in the U.S. You can become a lawful permanent resident by establishing a new commercial enterprise and provide full-time employment to at least ten U.S. citizens, legal permanent residents, or other immigrants with employment authorization.

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.

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We were the first ones to report the new policy and changes in background check procedures announced by USCIS on February 4, 2008. Read our post here. The response from the Blog readers has been very positive and supportive.

The most recent update is that Service Center Operations (SCOPS) liaison has confirmed that USCIS agencies are conducting “sweeps” to find adjustment of status cases that can be reviewed for adjudication under the changes discussed above.

AILA reports that, Pennsylvania District Court Holds FBI Name Check Delays in Naturalization Adjudications Are Unreasonable The U.S. District Court for the Eastern District of Pennsylvania finds for plaintiffs in a suit to end naturalization application adjudication delays due to FBI name checks. Also, it determines it is necessary to require USCIS to revise its regulations to address these delays. Read the case here Download file

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