U.S. ambassador in China announced today that since February 13, 2012, the United States will lauch a new pilot program that permits consular officers to waive interviews for some qualified nonimmigrant applicants worldwide who are renewing their visa within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa.  In China, many previous holders of B (temporary visitors for business/pleasure), C1 (transit), D (crewmembers), F (students), J (exchange visitors), M (nonacademic students), and O (visitors with extraordinary ability) visas will be able to renew their visas if they have been expired less than 48 months (four years), without another interview. For details, please check here.

If an immigration judge (IJ) granted you permanent residence during immigration court proceedings or you were granted permanent residence by the Board of Immigration Appeals (BIA) and you have not yet received your green card, please schedule an appointment with your local U.S. Citizenship and Immigration Services (USCIS) office. You can make an appointment through http://infopass.uscis.gov/.

Wait at least 3 days after the judge or BIA decision before you schedule the appointment with the local office. This will allow time for USCIS to receive the decision and update our computer information.

What should I bring to the appointment?

You should bring:

• A copy of the final order you received from the IJ or the BIA
• Identity documents (passport, driver’s license, USCIS-issued Employment Authorization Document, etc)

What if I still don’t receive my green card after my appointment?

After your appointment at the local office, if you have complied with all the instructions, including biometrics, and you still do not receive your green card after 30 days:

• Call the National Customer Service Center (NCSC) at 1-800-375-5283
• E-mail a USCIS national point of contact at citrixeoir@dhs.gov

You must provide the following when you call or email the NCSC:

• Name
• Alien number
• Date of birth
• Address
• Date of your order from the IJ or the BIA
• Specific type of relief granted (e.g., adjustment of status, cancellation of removal)
• Whether your order is final (if you or your representative know)
• The USCIS local or district office where you attended your appointment
• Dates of your local office and Application Support Center appointments
• Any other relevant information about your request for documentation

This information is required so that USCIS may better respond to your request.

YOU SAID “I DO” – NOW WHAT?  MARRIAGE BASED GREEN CARD INTERVIEW

An alien (no not the kind from outer space) and a U.S. citizen have fallen in love and gotten married.  The desire to obtain permanent residency in the United States is followed by filing a marriage based immigration petition.  After all the paperwork is accepted, an interview date is set by USCIS to take place at a local USCIS office.

Horrors!  As you can imagine, horror stories about the interview are everywhere – spoken by other people, written on the web, and even immortalized by Hollywood in the film “Green Card”.  The reality is that most marriage based interviews are conducted in a civil manner without extraordinary action on the part of the immigration officer. As you are aware, the sincerity of the marriage is the issue.  It is the officer’s duty to make that determination.

Now, for the reality of the interview – it is a typical scene at USCIS.  Upon arrival, you go through security and go to the floor where your interview will take place.  Hand in your interview notice at the window and wait for your name to be called.  Don’t be surprised if you see people from all around the world preparing for their different interviews.

After your name is called, the officer will bring you back to the interview area.  You will remain standing while you are sworn in.  Many officers will make small talk with you.  This is to put you at ease.  Do make an effort to participate in the conversation.  If you don’t understand something, ask the officer to repeat it.

Interviews usually take about 20-30 minutes.  The officer will go through your application forms to make sure that the information you provided is still up-to-date.  You will be asked to verify your information listed in the form I-325A, I-130 and you may be asked questions listed on the form I-485. It may be a good idea to go through those forms before you attend the interview.

The officer will ask questions about your relationships. For example, how do you know each other? When did the relationship become serious? Who proposed? How was your wedding? The officer can get into details of your marriage relationship. I have voted the following question the most difficult question to answer: what you two have in common? The rule of thumb, you should be honest and truthful in answering questions.

When an immigration officer develops suspicions about true nature of a marriage, he will often conduct a “separation interview.” A separation interview is an intense interrogation of both the husband and the wife, conducted by separating each spouse and asking them the same questions. Usually the officer will spend about 45 minutes to an hour questioning each spouse separately. Sometimes the questioning can last much longer.

At the end of the interview, the officer often asks, do you bring anything new to support the petition? This is a good time to submit new documents, for example, newly filed tax return, utility bills received after the petition is filed, new photos taken together, and etc. You should never waste this chance to further support your petition.

At the conclusion of this business, the officer will typically either tell you that your case is approved, that your case will be recommended for approval,  or that you need to submit additional documentation before a decision is made (you will be given a letter and 2-3 months to submit the missing items). In that case, you should follow the instruction carefully.

Affidavits are widely used in immigration cases. In many cases, affidavits can be submitted in connection with an immigration petition. For example, in marriage based immigration petition, affidavits of third parties are often submitted to prove the bona fide marital relationship between petitioner and the alien.

What is an affidavit?

An affidavit is a declaration or statement in writing made by a person who has personal knowledge of certain facts. Affidavits are often used to support a petition.

What do you have to say in an affidavit?

First of all, you should let the reader know who you are. You should tell the reader your name, address, phone number, email address and your immigration status.

Second, you should let the reader know why you are writing an affidavit. You should let the reader know your relationship with the petitioner and the alien beneficiary, and that you are writing to provide your personal knowledge to support the petition.

Third, you should tell the reader what you know. You should provide detailed description of the marriage relationship that you personally know of. You can describe an event, for example, the wedding or a party. You can describe how long the petitioner and the alien have been together, how often you meet with them, and your observation and opinion of this marriage relationship.

Fourth, you should sign the affidavit before a Notary Public. Remember, the affidavit is made under oath as if you are testifying in the court.

Consequence of submitting an affidavit

  An affidavit is a sworn written statement. You should tell the truth. Lying in your affidavit is like lying in court. Charges of perjury may be brought against you.

If you have questions, please feel free to contact me at 302-478-2900 or email me at huang@xhelgal.com, and I would be happy to answer your questions regarding writing an affidavit in supporting an immigration petition.

An H-1B visa holder intended to take a cruise trip to Mexico with his family. His only concern is that the H-1B visa is expired even though his I-94 is still valid. Can he take the trip and return to the United States without a valid visa? The answer is that he may be able to re-enter the United States under the automatic revalidation provision of immigration law.

What Is Automatic Revalidation?

Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by CBP, if they meet certain requirements, including, but not limited to the following:

• Nonimmigrants who departed the U.S. for brief travel to Canada, Mexico, or an adjacent island (for F and J nonimmigrants) for thirty days or less;

• Nonimmigrants with a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS.

More Information about Automatic Revalidation

For more information about automatic revalidation provisions and reentry to the U.S., visit the International Visitors webpage and the Automatic Revalidation Fact Sheet on the CBP website.

Who Must Reapply for and Be Reissued a Visa at a U.S. Embassy or Consulate?

Many nonimmigrants will need to reapply and be reissued visas to reenter the U.S. when their existing visas have expired, even if they are in possession of valid I-94 forms, because automatic revalidation applies to limited categories of travelers.  Refer to the Automatic Revalidation Fact Sheet on the CBP website.

The following temporary visitors whose nonimmigrant visas have expired, but who have valid I-94 forms, must reapply for and be issued nonimmigrant visas prior to their reentry to the U.S., if one or more of the following situations exists (this is not a complete listing):

The nonimmigrant traveler with an expired nonimmigrant visa (but valid Form I-94):

• Applied for a new visa which has not yet been issued;
• Applied for a new visa and was denied;
• Has been outside of the United States for more than thirty days;
• Has traveled to a country other than Canada, Mexico, or an adjacent island which is not included in the automatic revalidation provisions;
• Is a national of a State Sponsor of Terrorism designated country, including Cuba, Iran, Syria, and Sudan.  Review more about State Sponsors of Terrorism and FAQs on this website;
• Is in possession of an F student visa or J exchange visitor visa and has traveled to Cuba;
• Is in possession of an M student visa and has traveled to a location outside the U.S., other than Canada and Mexico.

Additional Resources – Laws

The automatic revalidation provision of U.S. immigration law is described in both 8 CFR 214.1(b) and 22 CFR 112(d).

WASHINGTON—Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment.

“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.”

“Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”

These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

USCIS has published a Frequently Asked Questions (FAQs) document on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.

Created by Congress in 1990, the program stimulates the U.S. economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.

USCIS has also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13″). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.

Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena. For detailed information on USCIS’s public meetings, please visit www.uscis.gov/outreach.

For more information, visit www.uscis.gov.

A new report by the Center for Immigration Studies, “Deportation Basics: How Immigration Enforcement Works (or Doesn’t) in Real Life,” discusses the ground-level process of what is now called “removal proceedings” and the issues that surround it. The report is available at here. Among the findings:

•A large percentage of aliens flee from removal proceedings – perhaps as many as 59 percent of all those released to await hearings. On a cost basis from the alien’s perspective, this makes sense. If you are in proceedings and have little chance of relief, why not treat the bond money (if it’s even required) as the cost of having been caught, and then flee, hoping to stay under the radar for as long as possible, perhaps until the next amnesty?

•Though fashionable in the Obama administration, the exercise of “prosecutorial discretion” is problematic for ICE field officers. If the alien that they decline to remove goes on to commit a heinous act, they could be subject to lawsuits from victims and will be held accountable by their own agency (even if agency leadership encourages them to use the tool).

•Even in today’s technology-driven world, charging an alien with immigration violations is a paperwork-intensive, cumbersome process that requires agents to fill out nearly 20 different forms each time.

•ICE officers are supposed to consider two key factors in determining whether to detain or release an alien in proceedings – if the alien is a flight risk and if he is a risk to the community. The latter factor obviously is given serious consideration, but it is equally obvious from the large number of absconders that officers don’t give the same weight to the likelihood of flight, especially considering the scarcity of funded detention space.

•The option of Voluntary Return, where the alien requests to be returned home in lieu of formal removal proceedings, is not really “voluntary,” but is beneficial to the alien because it carries fewer consequences if the alien returns illegally. It also has become subject to overuse or misuse in recent years as a tool to increase the volume of removals, at the expense of more formal methods of removal that have more deterrent value.

•Immigration law provides for seven ways to remove an alien, which are explained in the report. Four of these options are relatively efficient, but used less frequently. If ICE chose to expand their use, the workload of the immigration court could be reduced and the immigration enforcement system would be less dysfunctional.

•The total number of apprehensions of illegal aliens by immigration enforcement agencies is less than half of what it was five years ago. For instance, the drop in apprehensions by Customs and Border Protection (CBP) is often explained by improvements in border security; however, this rationale is suspect, as has been pointed out by the Rand Corp. in a study of border metrics. But ICE apprehensions also have dropped steeply, although there has been only a modest drop in the size of the illegal population inside the United States.

You can read the New York Times article here.

In a sweeping seech in El Paso, Texas, on Tuesday, President Obama rallied voters to unite in support of comprehensive immigration reform – a longstanding campaign promise on which he has yet to deliver.

While immigration rights activists largely approved of the sentiment behind the gesture, many argue that more action must be taken – and that the president could, if he wanted to, provide serious relief for some undocumented immigrants without the help of Congress.

How serious is Obama about immigration reform? For more informaiton, check here.

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. USCIS’ fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs. Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances.

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

You can find more information here.