Visa Lawyer Blog

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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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I have been dealing with USCIS offices in all 50 states, but the one in Fresno has always been one of my favorites. We process many adoptions cases and family petitions at that office, and I often fly over there to represent local clients. Don Riding (The Chief) staff are always on the ball and very helpful. I wasn’t surprised to read about his unusual service to sick and elderly clients that can not come to the Citizenship ceremony:

When Freydoon Alexandrous, who grew up in Iran and lives in Turlock, heard his citizenship request had been approved, he no longer had the strength to attend the naturalization ceremony in Fresno. Heart and orthopedic problems and a recent fall made the 85-mile trek to the Citizenship and Immigration Services office in Fresno impossible.

So Don Riding, CIS field office director, came to him.

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A recent story in San Diego Union Tribune outlines the risks of helping the US government, hoping to get protection in return. The story of a Nigerian immigrant that tried to work with the system

“This is a man who assisted the United States government as an informant, helping them prosecute drug-related crimes, and in so doing, he has put his life at complete risk. We believe that creates an obligation on the part of the United States to protect him,” said Meetali Jain, an attorney at the American University Washington College of Law International Human Rights Law Clinic.

Enwonwu, 58, has spent about five of the last 11 years in detention while fighting his deportation order. His legal appeals all but exhausted, he now is asking to be spared on humanitarian grounds.

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Much has been said about the DV Green Card lottery program, some even said that the program will be terminated all together. But for now the DHS issued a revision of the photo specification rule.

This rule revises the photo requirement as part of the application process for a Diversity Immigrant Visa, to require that the photo be in color. Color photographs enhance facial recognition and reduce the opportunity for fraud.

In the past, photographs submitted at the time of electronically filing petitions for consideration under INA 203(c) for issuance of diversity immigrant visas could be in either color or black and white. As part of the general harmonization of photo requirements for all visa functions, this requirement is being amended to make color photos the only acceptable photographs for a petition for consideration for diversity visa issuance. Compared to black and white, color photographs enhance the facial recognition process and reduce the opportunity for fraud.

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Arizona Law Mandating E-Verify went into effect on January 1, 2008 and is the nation’s toughest workplace enforcement law. It is aimed at punishing employers who knowingly hire illegal immigrants. Many other states are watching Arizona’s example and considering similar legislation.

The AZ District Court Dismisses Challenge to Employment Verification Law by industry leaders and activist groups. This ruling is a negative sign as to what will happen in other States trying to enforce immigration law locally.

Read the Order here

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H1B season is coming up, I am already feeling the pressure. Clients, employers and employees are calling and are anxious to start the process. USCIS in anticipation of the filing madness issue some tips for you to follow:
U.S. Citizenship and Immigration Services (USCIS), anticipating that April 1, 2008 will see a repeat of the mass filings from last year, wishes to offer this list of measures the petitioner can take to ensure that their petition is correctly filed.

For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. Cap subject petitions received before that date will be rejected. Petitions are filed at Vermont and California Service Centers, depending on jurisdiction. See filing instructions. Both the forms and the instructions can be downloaded from this website. Click on this page’s related link, “Download form I-129: Petition for a Nonimmigrant Worker” or visit the “Immigration Forms” section of our homepage.

Here are some general tips on what to do to make sure that your petition is completed and filed properly.

1. Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following codes:
Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
C/S Cap (Chile/Singapore H-1B1s)
U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)

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Finally some relief is coming to those pending FBI name check processing. This February 4, 2008, USCIS Michael Aytes memorandum modifies existing guidance regarding background and security checks on applicants, petitioners, and beneficiaries seeking certain immigration benefits.

As you may know, thousands of applicants are facing name checks delays by the FBI and other agencies. In many cases for no reason what so ever. Now USCIS is issuing this revised policy to align all agencies background checks with those of USCIS.

Under the new policy, applications that are otherwise approvable and the FBI name check has been pending for more than 180 days, the officer must approve the I-485, I-601, I-687 and proceed with Card issuance. So in other words, if the case is good and the FBI is the only reason for the delay after 6 months of delay, USCIS must issue the card. This doesn’t apply to pending Citizenship N400 cases at this time for some reason.

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I was featured on a special edition of the Rick Amato Show on Monday from 8pm-11pm immediately following the President’s State Of The Union speech. Scheduled guests included Congressman Bob Filner and Brian Bilbray. The president discussed the economy and Immigration in the speech. Listen to my commentary after the speech in the podcast below, (skip the first 15 minutes to listen to my discussion)
Click here to listen