THE IMMIGRATION BLOG

New hope for foreigners who are subject to the three/ten year bar

2012-01-10T13:44:00.000-08:00

A new proposal by the Department of Homeland Security (DHS) brings new hope to foreigners who are subject to the three and ten year bars because of their unlawful presence in the United States. Rather than leaving the United States to apply for a waiver at an overseas consulate office, these foreigners would be allowed to have their waiver pre-adjudicated by the USCIS in the United States according to the proposal. If their waiver applications are approved, they would still be required to depart the U.S. to apply for immigrant visas to return to the United States.

The 3/10 Year Bar
Section 212(a)(9) of the Immigration and Nationality Act provides that any noncitizen who after having been unlawfully present in the United States for 180-364 days and then voluntarily departs the country before they are placed in removal proceedings is not allowed to return to the United States for three (3) years. Similarly, a noncitizen who has been unlawfully present in the United States for one year or longer and then departs or is deported is not allowed to return to the United States for ten (10) years. These are known as the 3-year-bar and the 10-year-bar. There are some exceptions for asylum applicants, battered spouses, certain family unity beneficiaries and minor children. Furthermore, the unlawful period can be tolled for good cause and non-frivolous requests for extensions. Otherwise, if these noncitizens wish to return to the United States, they must first obtain a waiver from the U.S. government. The Department of Homeland Security has discretion to waive the 3/10-year-bars if the noncitizen can show that his U.S. citizen or legal resident spouse or parent will suffer extreme hardship if he is not allowed to return to the U.S.

Catch 22
For many foreigners who have accrued unlawful presence in the United States but are otherwise eligible for an immigrant visa, they are caught in a “Catch 22” situation. On the one hand, they are not allowed to apply for a green card within the United States because of their unlawful status. On the other, they do not want to leave the country for fear that they would not be able to return to the U.S. because of the 3/10-year-bars. Even if they are eligible to apply for a waiver based on hardship of their spouses and/or parents, they are afraid that the waiver might not be approved. The current policy is that the wavier must be filed with an overseas DHS office. In short, they are stuck between two equally undesirable options.

The New Proposal
The DHS recently announced that it intends to publish in the Federal Register a proposal to revise the procedures for determining the unlawful presence (family unity) waivers for spouses and children of U.S. citizens. The new proposal creates an “in-country processing” mechanism for noncitizens who are spouses and children of U.S. citizens to file the unlawful presence waiver. A noncitizen who has accrued unlawful presence would be able to apply for the waiver from within the United States. This “in-country processing” proposal would permit USCIS to grant a provisional waiver. Applicants would still be required to depart from the U.S. before receiving a final approval on their application. By pre-processing the family unity waiver, the applicant’s waiting time will be shortened. Currently applicants face a long wait when seeking a waiver outside the U.S. The goal of this new proposal is to encourage more noncitizens to come forward to file their immigrant and waiver petitions in the United States.

This process, however, does not change the legal requirements for immigrant visa petition or the family unity waiver application. The “law” regarding immigrant visas and waiver adjudication has not been changed. The change is only procedural in nature. Further, it is important to note that the proposal will not cover spouses and children of legal permanent residents. They must still follow the existing procedure and apply for a waiver at an overseas U.S. consulate office. Finally, applicants must not rely on this proposal yet until it is finalized. Thus far, the DHS has only published a statement of intent to propose the change. It is expected that the change will not be finalized until the end of 2012. Interested foreigners may start gathering documentary evidence to establish their eligibility for a waiver but should not act hastily before they have discussed their case with a qualified immigration attorney.

U Visa – An important tool for crime victims to obtain legal status

2012-01-06T07:04:00.000-08:00

Many immigrants in the United States are hesitant to approach police and other law enforcement officers when they become crime victims. For people who are in the U.S. without legal status, they try to avoid contacts with police officers for fear that their illegal status may be exposed. Even legal immigrants are sometimes afraid to approach police in the U.S. because of cultural differences and language barriers. Most of them do not know that there exists a special visa designed for victims of certain crimes called the U visa. The purpose of the U visa is to provide eligible victims of crimes with temporary nonimmigrant status so that they may assist law enforcement agencies in criminal investigations and prosecutions.

Congress created the U visa in The Victims of Trafficking and Violence Prevention Act (VTVPA) of 2000 to encourage victims to report crimes and help law enforcement officials to investigate and prosecute criminal activities regardless of the victims’ immigration status. Women and children are especially vulnerable to certain crimes such as human trafficking, sexual assault and domestic violence. If a U visa petition is approved, the petitioner receives nonimmigrant status to live and work in the United States for up to four years. Subsequently, qualified recipients may apply to adjust status to become a lawful permanent resident (green card) after three years of continuous presence in the U.S. as a U visa holder. There are other eligibility requirements for a green card as well, including the ongoing duty to cooperate with law enforcement in the investigation or prosecution of the qualifying crime. Additionally, other immediate family members of U visa recipients may also be eligible to live and work in the United States as derivative U visa recipients. These family members include: Unmarried children under the age of 21 of principal U visa recipients; Spouses of principal U visa recipients; Parents of principal U visa recipients under age 21; and Unmarried siblings under 18 years old of principal U visa recipients under age 21.

To apply for a U visa, one must file the USCIS Form I-918, Petition for U Nonimmigrant Status (Form I-918), and submit it to U.S. Citizenship and Immigration Services (USCIS) with all relevant documentation, including Form I-918B, the U visa law enforcement certification. The Form I-918B is a requirement for the U visa and must be certified by a qualified law enforcement agency including a federal, state, local law enforcement agency, prosecutor, judge, or other authority that has the responsibility for the investigation or prosecution of a qualifying crime. Essentially, the law enforcement agency must certify that the petitioner was a victim of a qualifying crime, has specific knowledge and details of crime, has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime. Qualifying crimes includes qualify for the U visa including murder, robbery, abduction, rape, sexual assault, kidnaping, incest, perjury, prostitution, obstruction of justice, etc.

The U visa is an extremely important incentive for victims of crimes to come forward to testify against the perpetrators. Because of the complexity of U visa petitions, applicants should seek assistance from a legal representative or victim advocate. It is important to know that certification by a law enforcement agency does not guarantee approval of a U visa. The USCIS must determine if other requirements of the U visa are met including whether the applicant has suffered substantial physical or mental abuse as a result of the subject criminal activity. However for victims of serious crimes without legal status especially women and children, the U visa may be their only hope to fight back.

Chennai will no longer process Immigrant Visa petitions as of January 1, 2012.

2012-01-06T07:01:00.000-08:00

"Important Announcement: The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Consulate General in Chennai will no longer process Immigrant Visa petitions as of January 1, 2012. The U.S. Embassy in New Delhi and U.S. Consulate in Mumbai will become the only acceptance centers in India for Immigrant Visas.
The Immigrant Visa allows an individual to live and work in the United States on a permanent basis, as well as provides the immigrant the opportunity to work towards U.S. citizenship.
Examples of Immigrant Visa based petitions are those that work toward family reunification of parents, children and siblings. These petitions also include Fiancée and the unique employer category, where one’s employer can petition for the individual and their dependents to immigrate to the United States. This change affects only the locations for processing of Immigrant Visas; it does not change the law or policy for visa processing. Applicants currently in the process of petitioning for an Immigrant Visa may contact ChennaiIVU@state.gov for clarification."

Source: The U.S. Consulate General in Chennai

Form I-130 Filing Location Changes

2011-12-26T20:01:00.000-08:00

"WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) will change the filing locations for Form I-130, Petition for Alien Relative. Effective Jan. 1, 2012, domestic petitioners will mail their stand-alone I-130 applications to either the Chicago Lockbox or the Phoenix Lockbox, depending on where they reside in the United States. The new filing locations will be updated with the corresponding addresses on Jan. 1 on the Form I-130 Direct Filing Locations page. This effort will balance workloads between the two locations and provide more efficient and effective processing of Form I-130.

There will be no change in filing locations when submitting Form I-130 along with Form I-485, Application to Register Permanent Residence or Adjust Status. Individuals filing these forms together will continue to mail them to the Chicago Lockbox facility. Petitioners filing from overseas addresses in countries without USCIS offices will also continue to file at the Chicago Lockbox facility. Petitioners residing in a country with a USCIS office may send their I-130 forms to the Chicago Lockbox, or they may file their Forms I-130 at the international USCIS office having jurisdiction over the area where they live."

Source: USCIS Website

Important issues about the filing of I-485 adjustment application

2011-12-23T16:16:00.000-08:00

The cutoff dates for employment based 2^nd preference immigrant visa for China and India have advanced significantly for the past three months. Since November 2011, the cutoff dates have leaped forwarded by more than 17 months to January 1, 2009. The rapid advancement means that many EB-2 professionals and advance degree holders are able to submit their I-485 application to adjust status to that of legal resident of the United States. Simultaneously the applicant may also apply for a general employment authorization document (EAD) and a travel document. Upon approval of the I-485 application, the applicant will receive her permanent resident card (or green card). There are some important issues related to this last step of the immigration process.

First and foremost, an applicant must ensure that she is not subject to any grounds of inadmissibility that would cause the denial of her green card. The U.S. immigration laws specify certain classes of individuals who are not allowed to immigrate to the U.S. For example, foreigners who have a communicable disease are not eligible to enter the U.S. Similarly, individuals who have serious physical or mental disorder which may pose danger to others are also excluded from admission. Persons who have been convicted for “crimes involving turpitude” are usually not allowed for admission. There are some waivers and narrow exceptions to some of these grounds of exclusions but serious criminal offenders are most certainly not eligible for these exceptions. If a person is found not eligible for a green card, she may also be placed in removal proceedings by the Department of Homeland Security. Hence it is important to evaluate one’s background before applying for permanent resident status.

Extensive documentation is required to support an I-485 adjustment application including one’s immigration background documents, employment related documents, tax and financial documents, medical health report, and all the required application forms. The fingerprints of the applicant will be taken and a thorough background check will be conducted by FBI. The sponsoring employer must also provide evidence that it will permanent employment to the applicant.

Another common issue of I-485 applicants is lapses in status in the past because of lay-offs and other reasons which resulted in their violations of nonimmigrant status. A H-1B employee might have been “benched” by an employer in tough economic times; an F-1 student could have been failed to maintain a full-time course load due to financial or health reasons; etc. Certainly applicants such as J-1 exchange visitors might also need a waiver for his foreign residence requirement. Again, careful planning and analysis is required for applicants with specific status problems.

Foreign spouses and children of I-485 applicants are also eligible to apply for permanent resident status as derivative applicants. Hence, if an applicant has plans to get married, he may want to adjust his plans in such a way that his future spouse would be able to adjust status as well. However, sufficient evidence should be presented to prove that the marriage is not one of convenience. The Department of Homeland Security will scrutinize new marriages carefully to ascertain that no elements of fraud are involved.

The medical examination required for immigration can also be an issue for some applicants. For example, many applicants from Asian countries initially test positive for TB (pulmonary tuberculosis), which is a contagious bacterial infection, although they have not been infected with the bacteria. The false positive result could have been caused by previous vaccinations that they received in Asia. Applicants must work closely with their attorney and physician to use further tests to confirm that they are not contagious. Otherwise, they would not be eligible to receive a green card.

January 2012 Visa Bulletin: EB-2 India/China Advance to January 1, 2009

2011-12-12T16:59:00.000-08:00

For January Visa Bulletin, the headline news is again the rapid advancement of EB-2 cutoff dates for China and India. Both countries advance by 9 ½ months to January 1, 2009. This is the third month that EB-2 has enjoyed rapid movements. As explained by the State Department, the advancement in cutoff dates are intended to “generate significant levels of new filings for adjustment of status” applications at the USCIS and to maximize usage of employment visa numbers.

Family-Based Immigration

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	15OCT04	15OCT04	15OCT04	15APR93	15APR97
F2A	22APR09	22APR09	22APR09	22MAR09	22APR09
F2B	08SEP03	08SEP03	08SEP03	01DEC92	01SEP01
F3	01NOV01	01NOV01	01NOV01	22DEC92	15JUL92
F4	15AUG00	15AUG00	15AUG00	08MAY96	08OCT88

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment-Based Immigration

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN09	01JAN09	C	C
3rd	01FEB06	15OCT04	08AUG02	01FEB06	01FEB06
Other Workers	01FEB06	22APR03	01AUG02	01FEB06	01FEB06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)

EB-2 China and India Advance to January 1, 2009 in January 2012 Visa Bulletin

2011-12-09T07:49:00.000-08:00

The hot-off-the-press January 2012 State Department Visa Bulletin reports some very good news for EB-2 employment visa applicants. EB-2 China AND India have both advanced significantly by 9 1/2 months to January 1, 2009!

H-1B Cap Reached for FY2012

2011-11-24T14:41:00.000-08:00

USCIS announced yesterday that the H-1B regular cap has been reached for FY2012. The final receipt date for H-1B petitions is November 22, 2011. Applicants who wish to apply for H-1B status must wait until April 1, 2012 to file a FY2013 petition that permits employment on October 1, 2012. Last year, the regular H-1B cap was reached on January 26, 2011.

DOS unable to Issue F, M and J Visas

2011-11-20T19:57:00.000-08:00

"The Department of State (DoS) has recently identified difficulties with its Consolidated Consular Database (CCD) communicating with the Student and Exchange Visitor Program’s (SEVP) Student and Exchange Visitor Information System (SEVIS). DoS discovered this issue on November 14, 2011. SEVP and DoS are investigating this issue between CCD and SEVIS to bring about a resolution as quickly as possible. Effective immediately, in order to ensure maximum data integrity and consistency, DoS has temporarily halted the issuance of ALL F, M and J visas at all U.S. Embassies and Consulates. Please note that this may alter prospective students’ or exchange visitors’ travel schedules."

Source: NAFSA memo to SEVIS Users

Deportation Cases of Illegal Immigrants to Be Reviewed - NYTimes.com

2011-11-17T06:23:00.000-08:00

Deportation Cases of Illegal Immigrants to Be Reviewed - NYTimes.com: "The Department of Homeland Security will begin a review on Thursday of all deportation cases before the immigration courts and start a nationwide training program for enforcement agents and prosecuting lawyers, with the goal of speeding deportations of convicted criminals and halting those of many illegal immigrants with no criminal record."

'via Blog this'

Only 7,400 H-1B Visa Numbers Available for FY2012

2011-11-07T12:37:00.000-08:00

As of November 2, 2011, the USCIS announced that approximately 50,800 H-1B cap-subject petitions have been received. There are about 58,200 total regular cap visa numbers available after certain set aside usage, leaving only 7,400 visa numbers still up for grabs.

L-1 visa petitions for applicants starting a new U.S. office

2011-11-01T21:20:00.000-07:00

Immigration Act Section 101(a)(15)(L) allows a multinational company to temporarily transfer foreign nationals with management, executive, and specialized knowledge skills to the United States to continue employment with an office of the same employer. Petitioners seeking to classify foreigners as intracompany transferees must file an I-129 petition with a USCIS service center for a determination. There are many complicated issues involved in the adjudication of an L-1 visa petition. For examples, the petitioner must establish that there is a qualifying relationship between the U.S. business entity and the foreign operation which employs the beneficiary abroad; the foreign national must have been employed abroad by the related foreign entity for at least one of the last three years in an executive, managerial, or specialized knowledge capacity; the U.S. business and the foreign company must continue to do business in the U.S. and a foreign country, either directly or through a related business entity such a parent, branch, subsidiary, etc.

The L-1 visa category has been identified by the government as one with vulnerabilities. For example, in a 2006 report prepared by the Inspector General’s Office of the Department of Homeland Security, there were concerns raised about whether foreign nationals will be coming to the U.S. to perform the duties in an L-1 executive or manager capacity. The government was also concerned about the definition of “specialized knowledge” being too broad. Finally, the government found it difficult to verify a petitioner’s foreign operations and recommended measures to start investigations in foreign countries. Consequently, each L-1 petition is subject to very strict scrutiny by the USCIS.

For L-1A managers or executives who are transferred to the U.S. to start a new office, their visa applications are subject to even stricter examination by the adjudication officers. The government adjudicators often question the veracity of such petitions and issue lengthy requests for further evidence requiring the production of extensive amount of documentation such as lease agreements, company organizational charts, employee information and job duties, financial documents, business documents such as invoices and purchase orders, etc. Petitioners often find it difficult to respond to such requests because, by definition, a new office usually does not have a history of business transactions, a team of professional employees, or even a fixed office location. To the extent that the petitioner has the burden to provide the documentation required to establish eligibility for L classification, failure to satisfy a request for additional evidence often would lead to a denial of the petition.

The issue is further complicated by the modern-day technologies and different means of conducting business. It is often possible for a new business operation to take off without plenty of office space and a team of employees. All one needs is a telephone, a fax machine, a telephone and an internet connection. Many well-known U.S. corporations started humbly in the founder’s garage. When foreign companies start a new branch office in the U.S., oftentimes they want to keep costs and overhead low. Before there is sufficient business volume to justify further expansion, these companies are hesitant to hire a team of professionals or sign a long term lease for office and warehouse spaces. However, when an L-1 visa petition is adjudicated, these nuisances generally cannot be used as excuses for failure to produce the required documents.

The American Immigration Lawyers Association has brought these issues to the attention of the USCIS in a recent meeting, and the USCIS has agreed to take AILA’s recommendations into consideration. The USCIS also commented that each case will be adjudicated based on its particular set of facts. For example, the evidentiary requirements for a request of a one-year extension of L-1 status and a request for a two-year extension of status will be different. Similarly, the evidence required to approve an import-export business’ petition will also be different from the evidence required to approve a chemical manufacturing company. The USCIS is also currently reviewing and revising its templates for L-1 Requests for Evidence. It is hopeful that positive changes will be made soon. One important issue to note is that, it is not wise to exaggerate the expansion plans or inflate the projected business revenues in the initial petition, as the USCIS will hold them against the petitioner during the adjudication of a subsequent extension petition.

New Medical Examination Form I-693 must be used beginning January 1, 2012

2011-10-31T18:37:00.000-07:00

On Nov. 1, 2011, USCIS will introduce a new, more user-friendly version of the form used to report results of medical examinations for those seeking certain immigration benefits, Report of a Medical Examination and Vaccination Record, Form I-693. Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.

Source: USCIS website, 10/28/2011

H-1B Cap Count Update

2011-10-26T06:14:00.000-07:00

As of October 21, 2011, the USCIS announced that approximately 46,200 H-1B cap-subject petitions have been received.

For advanced degree holders, USCIS has receipted 20,000 H-1B petitions.

When is a Lawful Permanent Resident considered seeking admission to the United States?

2011-10-23T22:21:00.000-07:00

The United States immigration laws confer certain rights and privileges to a person who has been granted Lawful Permanent Resident (LPR) status by the government. These individuals, commonly known as green card holders, are authorized to work and live in the United States indefinitely. Legal residents are also allowed to return to the United States after international travel. Nonresidents, on the other hand, are considered applicants for admission and must establish that they are admissible to the United States in order to enter.

Sec. 101(a)(13)(C) of the Immigration and Nationality Act provides that a returning LPR should not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the legal resident (i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

If either one of the six conditions apply, the returning green card holder is considered an applicant for admission and will be subject to less legal protection that he or she normally enjoys as a legal resident. A LPR is like a person who is returning home with a key (his green card) while an applicant for admission is like a visitor asking for permission to enter another person’s house. A visitor seeking admission but not a legal resident is subject to all the grounds of inadmissibility contained in the immigration statutes. When a legal resident is placed in removal proceedings, the government must first prove by clear, unequivocal, and convincing evidence that the grounds and basis for deportation are true before the person may be removed from the United States. The burden of proof is on the government to prove that the person is deportable. Similarly, to treat a returning resident as seeking admission to the United States, the Department of Homeland Security bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls under one of the above six categories of individuals.

For example, in a recent Board of Immigration Appeal (BIA) case, Matter of Benno Rivens, decided October 19, 2011, the Board remanded the case to the Immigration Judge to analyze if the offenses committed by the respondent - a green card holder - constitute a crime involving turpitude (CIMT). (This falls under condition v above.) If the DHS meets its burden by proving by clear and convincing evidence that the respondent had committed a CIMT, then he would be treated as an applicant for admission. Further, since convictions of CIMTs are also grounds of inadmissibility, he would also not be allowed to be admitted to the United States and, consequently, he would lose his green card. On the other hand, if the government fails to meet it burden of proof, the respondent would be allowed to return to the United States as a lawful permanent resident.

Hence, before a legal resident travels outside of the United States, it is very important for him to determine whether or not he will be regarded as a returning resident or an applicant for admission upon his return. Sometimes, it may be wise for a legal resident not to depart the United States at all.

FY 2011: ICE announces year-end removal numbers, highlights focus on key priorities including threats to public safety and national security

2011-10-22T08:00:00.000-07:00

FY 2011: ICE announces year-end removal numbers, highlights focus on key priorities including threats to public safety and national security: "Overall, in FY 2011 ICE's Office of Enforcement and Removal Operations removed 396,906 individuals — the largest number in the agency's history. Of these, nearly 55 percent or 216,698 of the people removed were convicted of felonies or misdemeanors — an 89 percent increase in the removal of criminals since FY 2008. This includes 1,119 aliens convicted of homicide; 5,848 aliens convicted of sexual offenses; 44,653 aliens convicted of drug related crimes; and 35,927 aliens convicted of driving under the influence. ICE achieved similar results with regard to other categories prioritized for removal. Ninety percent of all ICE's removals fell into a priority category and more than two-thirds of the other removals in 2011 were either recent border crossers or repeat immigration violators."

'via Blog this'

Napolitano: Deportation reviews to begin shortly - CNN.com

2011-10-20T20:49:00.000-07:00

Napolitano: Deportation reviews to begin shortly - CNN.com: "WASHINGTON (CNN) -- The Obama administration soon will begin its systematic review of the approximately 300,000 pending deportation cases, separating "high priority" cases involving criminals it wants to deport from "low priority" cases it will drop, Homeland Security Secretary Janet Napolitano told Congress Wednesday."

'via Blog this'

BIA held F2A visa beneficiaries may not "opt out" of automatic conversion to F1

2011-10-06T21:19:00.000-07:00

The Board of Immigration Appeal (BIA) has just held that a visa beneficiary is not allowed to retain his F2A preference status by opting out of automatic conversion to the F1 category as a son of a United States citizen upon his parent’s naturalization. Matter of ZAMORA-MOLINA, ID 3729, 25 I&N Dec. 606 (BIA 2011)

The mother of the beneficiary son filed a visa petition on his behalf when he was under the age of 21. However, while the case was waiting for a visa number, the son turned 21 and, subsequently, the mother became a naturalized citizen.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

Section 6 of The Child Status Protection Act (CSPA), also known as section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B category to the F1 category by filing a written statement with the Attorney General. However, BIA held that there is no provision of law that allows an applicant to "opt out" of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category.

This is a very important decision on a controversial issue. BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

EB-2 India and China Advanced to November 1, 2007 in November Visa Bulletin

2011-10-05T13:54:00.001-07:00

Good news for Indian and Chinese EB-2 green card applicants: the cut-off dates advanced 2 1/2 months to November 1, 2007 in November's visa bulletin just released by the State Department.

USCIS proposes rule to process EB-5 immigrant petitions filed between 1995 and 1998

2011-09-28T21:25:00.000-07:00

On Sept. 27, 2011, the USCIS announced that it has published a new rule for the processing of certain applications approved between 1995 and 1998 by foreign investors under the fifth preference employment-based immigrant visa classification (EB-5). The authority of the rule comes from the 21st Century Department of Justice Appropriations Authorization Act.

The new rule applies to approximately 580 principal immigrant investors who had their Immigrant Petition by Alien Entrepreneur (I-526) approved between Jan. 1, 1995, and Aug. 31, 1998. Their dependents are also covered.

In addition to an approved I-526 petition, these applicants must have also met the following condition prior to Nov. 2, 2002: Either filed a Form I-485 to attempt to adjust their status, or a Form I-829 to seek to remove their conditional permanent residence status obtained as an alien entrepreneur.

The proposed rule, if adopted, would provide an additional two-year period of time for these immigrant investors to meet the EB-5 investment and job-creation requirements. Other Eb-5 applicants would not be affected by this new rule. The public has 60 days to submit comments on this proposal. The new rule is accessible at www.regulations.gov.

Third Circuit Appeal Court held section 245(i) does not overcome 10-year illegal presence bar

2011-09-28T21:04:00.000-07:00

Section 245(i) of the Immigration and Nationality Act allows certain foreigners in the United States who would not normally qualify to apply for adjustment of status in the U.S. to apply for a green card regardless of the manner they entered the U.S., working in the country without authorization, and failing to continuously maintain lawful status since entry. The LIFE Act amendment extended the filing deadline to April 30, 2001.

However, Congress also passed another piece of legislation which punishes foreigners who had stayed in the U.S. without lawful status. Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two bars to admissibility for foreigners who were unlawfully present in the U.S. Individuals who have been unlawfully present in the U.S. for more than 180 but less than 365 days, and then depart from the U.S., are not eligible to return for the next three years. Similarly, foreign nationals who have been unlawfully present in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years (the 10-year bar).

The question arises as to whether a person in the United States who is subject to the 10-year bar may still apply for a green card through adjustment of status by invoking section 245(i) as a defense. Recently, the 3rd Circuit Court of Appeal held that an Indian software engineer who is subject to the 10-year bar may not adjust her status under section 245(i). In the case of Cheruku v. Att’y Gen. of the U.S. decided on September 22, 2011, the 3rd Circuit analyzed the above issue and concluded that Congress does not intend section 245(i) to overcome the 10-year-bar to admission.

Cheruku is a software engineer from India who first entered the U.S. on a B-1 business visa in 1995. She stayed in the U.S. and was offered a job by a U.S. employer. Her employer filed a labor application and immigrant visa petition on her behalf, both of which were approved. Cheruku filed an I-485 adjustment of status application on December 21, 2001 to apply for lawful permanent residence status. While the I-485 was pending, she travelled outside of the U.S. and used her advance parole return to the U.S. in 2002. In 2004, her I-485 was denied based on the 10-year-bar. Both the Immigration Court and the Board of Immigration Appeal found her barred from applying for a green card. She petitioned the 3rd Circuit Court to review her case.

Adopting the reasoning of the BIA, the Third Circuit first acknowledges that Congress passed section 245(i) and the LIFE Act with the intention to waiver some general grounds of inadmissibility such as entry without inspection and overstaying of status. However, it also found the 10-year-bar contained in the IIRIRA was intended to punish the more culpable class of foreigners who was present illegally in the U.S., then departed or deported, and then reentered the U.S. The LIFE Act does not explicitly excuse this type of behavior. In fact, Congress requires that foreigners who are subject to the illegal presence bars must first apply for a waiver from outside of the U.S. to obtain permission to reenter the U.S. Cheruku actually was paroled into the U.S. by using her advance parole (AP) travel document. The advance parole document is an auxiliary benefit of the adjustment application. However, the document itself contains a conspicuous warning that using the AP to travel may trigger and does not overcome the illegal presence bar to admissibility. The 3rd Circuit Court found no difference between Cheruku and those who reentered the United States illegally.

It is interesting to note that other federal circuits have reached different conclusions on this issue. While the 10th Circuit also adopts the BIA approach and held that the 10-year bar trumps section 245(i), the 7th Circuit held the other way. This remains to be an unsettled area of the law, to say the least. Suffice to say that foreign nationals who have been unlawfully present in the U.S. should not travel outside of the U.S. if they intend to use section 245(i) to apply for lawful permanent residence status.

Eligible Widows Must File Self Petition by October 28, 2011

2011-09-19T12:50:00.001-07:00

USCIS reminds certain eligible widows or widowers of deceased U.S. citizens to file their visa petitions by October 28, 2011 - the deadline imposed by the FY2010 DHS Appropriations Act. This Act, signed into law by the President on October 28, 2009, removed the requirement that the marriage must have existed for two years before the death of the U.S. citizen spouse in order for the surviving spouse to self-petition for lawful permanent residence status. The elimination of the so-called "widow penalty" also allows any minor children of the widow(er) to apply for status. However, the law imposed a two-year deadline to file the petition. Applicants whose U.S. citizen spouse died on or after October 28, 2009 will
have two years from the date of the citizen spouse's death to file a
Form I-360 petition. For whose applicants whose U.S. citizen spouse died before October 28, 2009, and if they did not have a Form I-130 visa petition pending on October 28, 2009, they must file the I-360 visa petition on or before October 28, 2011.

LA Asylum Fraud and Asylum Reform

2011-09-19T10:29:00.000-07:00

Recently, an immigration consulting business in Los Angeles was charged by the authorities with immigration benefit fraud and failing to disclose their role as preparers on hundreds of asylum applications. This story may not be news for people who are familiar with immigration news. It is just another immigration fraud case, one may say. However, it offers some insights into the political asylum application process in the U.S.

The U.S. as a country of immigrants and freedom has always embraced the idea of providing protection for those who need it. It has incorporated the definition of “refugee” from the United Nations Convention and Protocol Relating to the Status of Refugees in the domestic law. Simply put, a refugee is a person outside her country or last place of residence who is unable or unwilling to return to that country or place because of persecution or a well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group of political opinion. A person who meets the definition of a refugee may apply for political asylum if such a person is physically present in the U.S.

Because of the benefits that it offers to the applicant, including an opportunity to obtain a U.S. green card and employment authorization, political asylum has become the target of fraud and abuse. Prior to 1995, by filing an asylum application, a person was able to also obtain an employment authorization document (EAD) at the same time, thus providing a strong motive for filing fraudulent asylum applications. In 1996, Congress amended the Immigration Act to implement asylum reform. An applicant who is found to have filed a frivolous asylum application is barred from applying for any immigration benefits in the future. Further, an applicant is not able to obtain an EAD until 180 days have elapsed after filing of an asylum application. Individuals who are involved in asylum fraud - including the applicant herself - are subject to civil and criminal punishment.

Asylum reform was effective for a short period of time. However, greed trumps fears of punishment again after a while when unscrupulous scammers got used to the new process. They continued to advertize their services and lure the undocumented foreigners to submit frivolous asylum applications. Sadly, these foreigners are the real victims of the story. Some of them may not even know what was being filed on their behalf. Take the recent LA-area immigration fraud case as an example – two men were charged with preparing and filing bogus asylum applications for hundreds of Chinese individuals based religious persecution. Reportedly, these applications contain fabricated stories of religious persecution with identical accounts of happenings. No wonder they were caught by the authorities! All of these cases will be reopened and reviewed once again. Most if not all of them will be denied. These applicants will likely never be able to apply for any immigration benefit. They could also be charged with fines and put in jail. This is after each of them has paid anywhere between $3,500 and $6,500 to the agency.

Perhaps what is worse is the collateral damage caused by this kind of fraudulent cases - it greatly reduces the chances of genuine asylum applicants to obtain protection in the U.S. Proving an asylum claim by itself is already a formidable task. Adjudicators of asylum applications will be extra careful when examining asylum applications after reading reports of asylum fraud such as the LA case. This story also suggests that more is needed to be done to improve the U.S. asylum process. Most immigrants tend to seek assistance from the folks who speak their language and who come from their place of origin. More non-profit organizations and outreach programs should be set up in immigrant communities to provide correct legal advice and information for newcomers to America.

October 2011 Visa Bulletin: Advancements in Employment 2nd India/China, Family 1st and 2nd

2011-09-19T10:08:00.001-07:00

Following the disappointment September bulletin, October kicks off the new fiscal year with some good news. First, Eb-2 India and China advance nicely to July 15, 2007. On the family side, after having been unchanged for a few months, Family 1^st finally advances for all countries – China, India, and Other Countries all move forward by six weeks; Mexico moves forward by one week; Philippines advances two months. Family 2A moves forward five weeks to January 8, 2009 for China, India, Philippines, and Other Countries. The Family 2B categories also see anywhere from two to five weeks of advancement.

Family	Other Countries	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	15JUN04	15JUN04	15JUN04	22MAR93	08JAN97
F2A	08JAN09	08JAN09	08JAN09	15OCT08	08JAN09
F2B	15JUL03	15JUL03	15JUL03	22NOV92	01MAY01
F3	08SEP01	08SEP01	08SEP01	01DEC92	08JUN92
F4	15MAY00	15MAY00	15MAY00	08APR96	01AUG88

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
EB1	C	C	C	C	C
EB2	C	15JUL07	15JUL07	C	C
EB3	08DEC05	08AUG04	15JUL02	08DEC05	08DEC05
Other Workers	15SEP05	22APR03	08JUN02	15SEP05	15SEP05
EB4	C	C	C	C	C
Religious Workers	C	C	C	C	C
EB5	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)

USCIS Continues to Accept Adjustment Applications with Current Priority Dates

2011-09-16T18:51:00.000-07:00

In spite of the State Department's notification to USCIS that all EB immigrant visa numbers have been exhausted for FY2011, the USCIS today announced that it will continue to accept adjustment of status applications (I-485) based on the September visa bulletin through the entire month of September. The regulations provide that the visa bulletin published by the State Department controls whether or not there are visa numbers available for an adjustment applicant. The September visa bulletin does not indicate unavailability of visa numbers in any of the EB preference visa categories.