A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Thursday, September 25, 2014

Diversity Visa Program ("Visa Lottery") 2016

The annual U.S. visa lottery is here again! The Diversity Immigrant Visa Program ("DV Program" or "Visa Lottery") was created by Congress to provide an opportunity for individuals from countries with historically how rates of immigration to the U.S. to obtain permanent resident status.  It is an annual program with approximately 50,000 visas available.  For fiscal year 2016, applicants must submit their applications electronically between noon, EDT, Wednesday, October 1, 2014, and noon, EST, Monday, November 3,  2014.

Eligibility

1) Eligible Countries:   Natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Although people born in mainland China are not eligible to apply, those who were born in Hong Kong SAR, Macau SAR, and Taiwan are eligible for DV-2016.

Even if a foreign national's native country is not eligible for visa lottery, there are two other ways that the person may qualify to apply.  First, if this person’s spouse was born in an eligible country, than the person may also apply based on the spouse’s native country.  Secondly, if an applicant was born in an ineligible country such as China, but his or her parents were born in an eligible country such as Taiwan and they were not residing in China at the time of applicant’s birth, then the applicant is also eligible to apply.

2) Education and Work Experience Requirement:   An applicant must either have a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.

Family members

For a married couple, if both husband and wife are qualified, they may each submit one application in order to increase the chances of being selected. Which family members should be included in the application?  The application must list the applicant’s spouse and all living unmarried children under the age of 21, including step-children and legally adopted children.  Even if a family member has no intention to immigrate, he or she must be included in the application form. The only exception is that the family member is a U.S. citizen or green card holder.

When and how to submit an entry

Entries for the DV-2016 program must be submitted electronically between noon, Eastern Daylight Time (EDT), Wednesday, October 1, 2014, and noon, Eastern Standard Time (EST), Monday, November 3,  2014.  Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Do not wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 3, 2014.

The DV program makes visas available to persons meeting simple but strict requirements. Applicants should carefully follow the program instructions to fill-out the application form and submit all required photographs.  Entries not following the official instructions and requirements will be rejected and disqualified.  Furthermore, DHS is technologically capable of identifying fraudulent entries, illegal entries or multiple entries. After an application is submitted, a unique confirmation number is generated.  This number should be kept in a safe place for future reference.

Selection process

A computerized process will randomly select 50,000+ lucky winners for DV visas.  There are no ways to improve the odds of getting selected.  As stated before, all eligible members within a member may apply individually, thus increasing the chance of winning.

When and how to find out the results

Beginning May 5, 2015 (until at least June 30, 2016), applicants will be able to check the status of their DV-2015 entries online.  Visit www.dvlottery.state.gov, click on Entrant Status Check, and enter the unique confirmation number and personal information. Entrant Status Check will be the only means through which applicants may check the status of their applications.  It will also provide instructions to the winners of the visa lottery how to proceed with the application process, and also notify them of their appointments for their immigrant visa interview. Therefore, it is very important for an applicant to keep the confirmation number.

Sunday, September 21, 2014

Adopted children may self-petition for green card without living with abusive parents for 2 years

A recent USCIS policy memo implements an exception to the two-year custody and two-year residency requirement for abused adopted children.  This policy memo, dated July 14, 2014, provides guidance to USCIS officers in adjudicating Form I-360, filed by a self-petitioning adopted child for a green card, when the adopted child has been battered or abused.


Normal Requirements for Adopted Children Petition
Under normal procedure, an adopted child must meet certain legal requirements before he or she may apply for a U.S. green card based on the adoptive parent's petition.  The Immigration and Nationality Act (INA) requires that the child's adoption must have been completed before the adopted child’s 16th (or 18th, if the child's sibling had been adopted by the same adoptive parent prior to the age of 16)  birthday.  Further, the adoptive parent must also have had legal custody of the adopted child for at least two years, and must have resided with the adopted child for at least two years. There are some exceptions to these requirements. For example, orphan adoptions or Hague Convention adoptions are governed by different sets of rules.

Problems under the Regular Requirements
Under the regular legal requirements, adopted children were required to prove that they have had two years of legal custody and two years of residence with the U.S. citizen or lawful permanent resident adoptive parent.  These requirements created problems for adopted children who were abused by their parents.  These children were not able to apply for a green card until they had lived with their abusive parents for two years.  If they chose to escape or move out of the abusive home, they would become ineligible for a green card for failing to meet the two-year legal custody and two-year residency requirements.

Violence Against Women Act 2005 Amendments
In 1994, the Violence Against Women Act (VAWA) was signed into law, which allows certain abused adopted children of U.S. citizens or lawful permanent residents to self-petition for immigrant visas.  However, many adopted children were not able to self-petition because they failed to meet the two-year legal custody and two-year residency requirements.

In 2005, VAWA was amended to remove these two requirements by amending the definition of
an adopted child under INA for a child if the child has been battered or subjected to extreme cruelty by the adoptive parent or by household family members of the adoptive parent.  In effect, the VAWA 2005 amendments allow abused adopted children to leave their abusive home without jeopardizing their eligibility to file a self-petition for green card.

New Guidance under Policy Memo
The new policy memo provides guidance on the adjudication of a VAWA-based Form I-360.  The policy memo basically adopted the VAWA 2005 amendments in the adjudication process.  Under the new policy, an abused adopted child applying for a self-petition only needs to prove that he or she shared a residence with the abuse parents for some period of time.  If the child has been abused
by the adoptive parent or a household family member,  the two-year custody and two-year residence requirements no longer applies.  To apply, the adopted child must be at least 14 years old and a person of good moral character.

Further, an abused adopted child may file the I-360 petition outside of the U.S. if  the abuser is an employee of the U.S. government or a member of the uniformed services, or if the self-petitioning child was subjected to battery or extreme cruelty in the United States.

Late filing is also allowed under the new policy.  Specifically, if the abuse was "one central reason" for the delay in filing, the "child" may continue to be eligible to file a self-petition until the age of 25.

Claims of abuse and extreme cruelty are scrutinized carefully by the adjudicators.  Substantial evidence such as police reports, sworn statements, medical documentation, etc., is required to prove that a child was battered or subjected to extreme cruelty.  

Thursday, September 18, 2014

PERM Labor Application Processing Time

U.S. Labor Department posted the following PERM processing times as of 09/08/2014 -

Analyst Reviews: April 2014  (About 5 months - an improvement from the beginning of the year)
Audit Review: March 2013 (About 18 months turn around - audits are getting slower.)
Reconsideration Requests: September 2014 (almost current)
Gov't Error Re-considerations: Current

(Note: the dates denote initial filing dates)

Sunday, September 14, 2014

California to issue driver's licenses to the undocumented in 2015

The Department of Motor Vehicles (DMV) in California will be issuing driver's licenses to
undocumented drivers under a new law as long as they can prove their identity and California residency.


Under the new law - Assembly Bill (AB) 60 - an applicant must still be able to provide proof of identify and residency in California within six months of application.  Furthermore, applicants must be at least 16 years old and without criminal background. The new law is expected to become operative on January 1, 2015.

Licenses issued under AB 60 are visually different from the regular driver's licenses. For instance, instead of using DL (driver's license), it will use DP (driving privileges).

Under AB 60, undocumented drivers must still pass a written and driving test and obtain proof of insurance before they are allowed to drive in the state. Approximately 1.4 million undocumented persons in California are expected to apply for driver's licenses over the next three years under the new law.

October 2014 Visa Bulletin: EB-2 India unchanged & retrogression expected

In October, there is some nice forward movement in family-based visa categories.  Family First (F1) for China, India and Other Countries all move forward by three (3) weeks to 05/22/07.   F-1 Philippines advances one (1) month to 09/01/04.  Another significant movement is with the Family 2A (spouses and minor children of lawful residents) categories.  F2A advances one (1) month to 02/01/13 for almost all countries; it advances three (3) months for Mexico.  This category was stagnant for many months until recently.  


On the employment side, the headline news is the slowing down of EB-2 India.  This visa category is unchanged in October, and is expected to retrogress as soon as November (next month) due to increased filing of I-485 adjustment applications.  After the publication of the October Visa Bulletin, State Department also announced that the FY2014 visa cap for EB-2 India was reached as of 09/10/2014.  This series of events indicate that the demand for EB-2 India has increased significantly in recent months, most notably due to large number of EB-3 to EB-2 upgrades among Indian applicants.    

On the other hand, EB-2 for China moves forward by five (5) weeks to 11/15/09.  EB-3 China moves forward by five (5) months to 04/01/09.  EB-3 India advances one (1) week to 11/15/2003.  EB-3 Philippines, Mexico and Other Countries advance six (6) months. 



FAMILY
Other Countries
China
India
Mexico
Philippines
F1
05/22/07
05/22/07
05/22/07
06/22/94
09/01/04
F2A
02/01/13
02/01/13
02/01/13
07/22/12
02/01/13
F2B
07/01/11
07/01/11
07/01/11
08/01/94
12/15/03
F3
12/01/03
12/01/03
12/01/03
10/22/93
06/01/93
F4
01/22/02
01/22/02
01/22/02
02/01/97
04/08/91

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
India
Mexico
Philippines
EB1
C
C
C
C
C
EB2
C
11/15/09
05/01/09
C
C
EB3
10/01/11
04/01/09
11/15/03
10/01/11
10/01/11
Other Workers
10/01/11
07/22/05
11/15/03
10/01/11
10/01/11
EB4
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)

Friday, September 12, 2014

Immigrant visas cut-off dates advance for Philippines due to decreased demand

The recent decreased demand for both employment-based and family-based immigrant visas for the Philippines has caused the visa cut-off dates to advance, according to Charles Oppenheim, Chief of the Visa Control and Reporting Division for the U.S. Department of State (DOS).

Most significantly, the October cut-off date for the Employment-based 3rd Preference and "Other Worker" categories for the Philippines is 10/01/2011, the same as (or as fast as) the Other Countries.  

EB-2 India FY2014 Visa Cap Reached

Charles Oppenheim, Chief of the Visa Control and Reporting Division for the U.S. Department of State (DOS), has confirmed that the EB-2 visa category for India was no longer available as of 09/10/2014, and will remain unavailable until 10/1/2014, when FY2015 begins.  

Applicants with priority dates earlier than 05/01/2009 may still continue to file their green card applications until the end of September.  However, those cases will be held in the Visa Office's "Pending Demand" file until 10/1/2014, when new visa quota becomes available.

Cases that have been submitted and pre-adjudicated will continue to be processed.  The visa exhaustion does not affect them as visa numbers have already been allocated.

Further, as reported in the October Visa Bulletin, EB-2 India is expected to retrogress as early as November this year due to large number of EB-3 to EB-2 upgrades for Indian-born applicants.

Thursday, September 11, 2014

Political activities in the U.S. held to be "changed circumstances" for asylum application

A person who harbored dissenting views of his government came to the United States.  About eight years later, he started to become politically active in expressing his opposition to his government. This person argued that these activities in the United States constituted "changed circumstances" under asylum law, which should excuse his late filing of his asylum and related applications. The United States Second Circuit Court of Appeals agreed and ruled in his favor in a recent decision. (Lin v. Holder, 8/19/14).

One-year deadline for asylum application
The U.S. immigration law generally only allows a foreigner to apply for political asylum within one year of his or her entry into the United States.  There are some exceptions to this general rule. For example, if a person is seriously ill or disabled, then the deadline can be excused.  Another exception is a showing of changes in circumstances in his case.

Changed circumstances as an exception
Generally speaking, changed circumstances such as changes in country conditions or changes in the law are valid basis for late filing of one's asylum application.  There are other changes in circumstances that may also be eligible.  In the case of Lin, his claim of changed circumstances is based on the activities that he took part after his arrival to the United States.  According to Lin, he harbored dissenting views of the government before he left China in 1997.  However, he did not do anything to publicly express his political views until after he arrived in the U.S.

In December 2007, Lin joined an organization called China Democratic Party World Union (“CDPWU”). He also wrote essays for the CDPWU website criticizing the Chinese Communist Party. Finally, he participated in group protests at the Chinese Consulate General’s Office in New York City and at the Chinese Embassy in Washington.

Immigration Judge and BIA did not find changed circumstances
Lin's case was heard by an immigration judge (IJ) in New York, who found that the recent expression of his long-held views of the Chinese government did not constitute changed circumstances. According to the IJ, these new activities did not constitute a new reason to justify asylum. The judge also believed that Lin's activities were relatively mild and so far removed from China.  There was little chance that the Chinese government would take note of Lin's activities and punish him. The BIA agreed with the judge's decision.

Second Circuit held Lin's U.S. activities constituted changed circumstances
Lin appealed the case to the Second Circuit Court of Appeals. The Second Circuit held that the IJ and BIA decisions were wrong as a matter of law.  Their decisions are inconsistent with the regulation, which interprets changed circumstances to include “activities the [asylum] applicant becomes involved in outside the country of feared persecution that place the applicant at risk,” 8 C.F.R. § 1208.4(a)(4)(i)(B).

Secondly, their decisions are also inconsistent with BIA decisions dealing with "second child" issues.  In those cases, applicant's giving birth to a second child was recognized as changes in personal circumstances which would increase the likelihood of persecution.  See In re T-M-H- & S-W-C-, 25 I. & N. Dec. 193 (BIA 2010). These applicants are similar to Lin in that their viewpoints did not change but their actions expressing their viewpoints changed.

The Second Circuit left the question of whether or not Lin should be granted asylum to the IJ and BIA. It also invited the BIA to issue more binding decisions relating to this important issue.

Friday, August 29, 2014

China EB-5 Visa Quota Used up for 2014

The EB-5 immigrant visa numbers have been used up for China for fiscal year 2014 as of August 23, according to Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division, U.S. Department of State. 

This action is necessary because all available visa numbers for China in the EB-5 category have been allocated to existing cases. 

The EB-5 visa provides a method of obtaining a green card for foreign nationals who invest money in the United States. To obtain the visa, individuals must invest $1,000,000 (or at least $500,000 in a "Targeted Employment Area" - high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers excluding the investor and their immediate family.

However, this development does not affect applicants whose cases that have already been processed and scheduled for interviews. These cases have already been reviewed and allocated visa numbers, including cases that have been scheduled for interviews. Therefore, Chinese EB-5 applicants who have been scheduled for an interview at an overseas American Consulate based on the original establishment of the August and September cut-off dates would not be impacted by the exhaustion of visa numbers as they already have been allotted visa numbers.  

The State Department states that no additional numbers are available for cases originally scheduled for interview in an earlier month who are just now returning, or for those first requesting an interview.  However if there are Chinese applicants who fail to appear or failed to overcome a refusal during August or September, then additional visa numbers will be available.

USCIS offices may continue to accept and process China Employment Fifth preference cases and submit them in the normal manner. However, instead of being acted upon immediately, those cases will be held in the Visa Office's "Pending Demand" file until October 1, 2014. At that time, all eligible cases will be automatically authorized from the "Pending Demand" file under the FY-2015 annual numerical limitation. Each USCIS requesting office will receive an e-mail notification of such authorizations, which will be effective immediately.

Applicants who are impacted by the unavailability of visa numbers or otherwise do not qualify for EB-5 investment visas may consider applying for L-1 visa if they own or currently working for a foreign enterprise. 

The L-1 visa is a temporary, non-immigrant visa which allows qualified overseas companies to relocate foreign qualified employees to its U.S. parent, branch, affiliate, or subsidiary of that company. There are several different types of L1 visas. L-1A visa is specifically designed for intra-company executive or manager transferees. The L-1B visa is designed for intra-company transfers of employees with specialized knowledge. 

It is also important to note that additional visa numbers will be available starting October 1, 2014.  However, demand will likely continue to be strong for this visa category.

Visa Fees and Affidavit of Support Fee Increases

The Department of State amends its Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.  The amendment was published in the Federal Register on August 28, 2014 as an interim rule, which will become effective on September 6, 2014.  The fees will be charged starting 15 days after the date of publication.  The major changes are as follows:

  • Family based immigrant visa fee: $230 to $325 
  • Employment based immigrant visa fee: $405 to $345
  • Affidavit of Support review (I-864):  $88 to $120
  • E Visa Application: $270 to $205
  • K Visa: $240 to $265
  • I-360 and other Special Immigrant Visa Petition: $220 to $205
  • Renunciation of U.S. citizenship: $450 to $2350
For most immigrant families, the most important changes are the family based immigration visa fee increase from $230 to $325 (per applicant).  The Affidavit of Support (I-864) review fee has also been increased from $88 to $120.  

Wednesday, August 20, 2014

Labor application: Newspaper requirements not applicable to additional recruiting steps

The requirements for newspaper advertising do not apply to the additional recruiting steps for professional occupations under the labor application regulation, according to a recent decision of the labor certification appeal board.  Matter of Symantec Corporation, 2011-PER-01856 (July 30, 2014).


A foreign labor certification is usually required before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  The regulation requires that an employer must advertise the job openings in Sunday newspaper of general circulation for two times. In addition, employer must also fulfill three (3) additional recruiting steps for professional positions.  For example, an employer can post the job opening on an online job search website as an additional step.

In the case at issue, the employer, Symantec, filed a labor application on behalf of a Financial Programmer Analyst.  As one of the additional recruiting steps, they posted the job opening on a job search website. The labor application submitted does not contain any travel requirements.  However, in the job search website posting, it states that the employee may be required to work on projects "at various unanticipated sites throughout the United States."  The Labor Department Certifying Officer (CO) denied the labor application on the basis that the travel requirement posted is an additional requirement not included in the labor application under the regulation.

The employer on motion and appeal explained that the online job posting is for multiple openings, some of which require travel to other places, but the position being offered does not have any travel requirements. Further, the employer argued that the regulation cited by the CO only applied to newspaper advertisements but not in the other additional recruiting steps.  A panel of three appeal board judges agreed with the employer and reversed the denial.  However, the CO petitioned for a rehearing of the case by the whole Board of Alien Labor Certification Appeals (BALCA).

BALCA decided, en banc, that the employer is correct in that the regulation cited by the CO for denying the labor application does not apply to the additional recruiting steps.  The plain language of the regulation states that the additional steps only have to advertise the job opening; it does not impose other requirements. Here the employer did advertise the job opening as required, and the labor application should not be denied based on unwritten requirements in the regulation.  Symantec marks a clear change in direction in the interpretation of the regulation by the BALCA from cases such as East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc).  It also provides some much-needed guidance regarding the recruiting process of PERM labor application. 

Thursday, August 7, 2014

"Youhuitong" Program and EB-5 Investment

The modernization of the Chinese economy has created unprecedented number of wealthy individuals. Many are them are interested in immigrating to other countries especially the United States for educational, business, and other opportunities.

For a foreign investor to participate in the U.S. EB-5 immigrant visa program, he or she must invest either US$500,000 or $1,000,000 in a U.S. enterprise and create 10 full-time job opportunities.  However, the Chinese government has a $50,000 annual limitation on currency transfers on its citizens.  Traditionally, to invest in the U.S. EB-5 program, a Chinese investor would ask 10 or 20 friends to each receive and convert the Chinese equivalent of US$50,000 or $1,000,000, and then transfer the funds to a bank outside of China. The funds would then be grouped together again outside of China before they are invested in either an EB-5 Regional Center or direct investment program.

However, this process of funneling funds outside of China has proven to be quite complicated and inconvenient; also, it is not always easy to find "friends" to act as conduit to transfer money for foreign investments.  As a response to this situation, some Chinese national banks started some pilot “youhuitong” programs which would allow unlimited transfers of funds to overseas in a single transaction. The bank usually charges a certain percentage of the total remittance as processing fee.  The bank also profits from the fluctuations of the foreign current exchange rates.  Because of the convenience of this type of youhuitong programs, they have quickly become very popular among EB-5 investors.

On July 10, 2014 the official state broadcasting TV channel in China, the China Central Television network (CCTV),  recently issued a report on these "youhuitong" money transfer programs, accusing some banks of acting inappropriately in providing services to help wealthy Chinese citizens to convert large sums of currency and transfer them abroad to invest in the U.S. EB-5 investor immigration program. Although the report has been withdrawn since then, the banks have temporarily suspended the youhuitong unlimited-transfer programs.

Some U.S. and overseas commentators and media speculate that the CCTV report was politically motivated.  Because of the demand for the EB-5 investment visas has been on the rise in recent years, it is possible that this type of "youhuitong" programs will re-surface again later on to facilitate investors to transfer funds to overseas countries for investment purposes.


Thursday, July 31, 2014

More nurses will qualify for H-1B under new USCIS Policy

Under new guidance released by USCIS on the H-1B specialty occupation program, it is now easier for foreign nurses to be qualified for the H-1B visa. The key issue is whether the position offered to the foreign nurse qualifies as an H-1B "specialty occupation".

The H-1B Specialty Occupation
The H-1B visa program allows a U.S. employer to hire foreign workers in a specialty occupation for a temporary period of time.  To qualify as a specialty occupation, the petitioner must establish that the position offered normally requires a bachelor's degree as a minimum requirement for entry into the profession, or the position is so complex or unique that it can be performed only by an individual with a degree.  Traditionally, most registered nurse (RN) positions do not qualify as a specialty occupation because, in the United States a bachelor's degree is not required to work as a nurse.  In the U.S., one may become an RN through three education paths: a bachelor’s of science degree in nursing (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program.

Changes in USCIS Position
Because some nursing jobs do not require a bachelor's degree, USCIS has taken the position that nursing jobs do not qualify as specialty occupations. Consequently, H-1B petitions filed on behalf of "regular" RN jobs are usually not approved. The former INS Executive Associate Commissioner Johnny N. Williams issued a policy memorandum on November 27, 2002, confirming this position of the agency.  However, on July 11, 2014, the USCIS issued an updated policy memorandum on this particular issue, stating that the agency will adopt new standards in adjudicating H-1B petitions filed for nursing positions.

Specifically, the agency will consider evidence regarding (1) The nature of the petitioner’s business; (2) Industry practices; (3) Detailed description of the duties to be performed within the petitioner’s business
operations; (4)  Advanced certification requirements; (5)  ANCC Magnet Recognized status; (6)  Clinical experience requirements; (7) Training in the specialty requirements; and (8) Wage rate relative to others within the occupation.  The adjudicators will make a decision based on a totality of circumstances of the case.

The change stems from the agency's observation that the nursing profession has undergone many changes over the years.  The profession has become more complex and specialized, and many nursing jobs require a bachelor's degree to quality nowadays. There are also master's degree nursing programs offered by colleges. A bachelor's degree is also required for some nurse managers positions. For a medical organization to achieve "magnet" status designation, the educational background of its nursing workforce is also a critical factor.  There are also specialty nursing jobs which require at least a bachelor's or higher qualification. For example, certain advanced practice registered nurse (APRN) positions require a bachelor’s or higher degree in a specific specialty. Other occupations cited by USCIS that may satisfy the requirements for a specialty occupation include: Certified Nurse-Midwife (CNM); Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).

Conclusion: The Policy has Changed but not the Law
The new policy will allow more foreign nurses to quality for the H-1B visa going forward.  However, it is important to note that the new policy memo represents only changes in the agency's interpretation of the legal standard. But the law and the regulation regarding the H-1B visa program remains the same.  Nevertheless, this is still good news for foreigners who aspire to work in the U.S. as nurses.

U.S. State Department Passport/Visa System - Update on recent technical problems

The State Department website provides the following update on its recent system technical problems -

The CCD is still performing below its normal operational capacity. However, to give you an idea of the progress we have made, from the start of the operational issues on July 20 through July 28, we issued more than 220,000 nonimmigrant visas globally. Based on our average production figures, we would have anticipated issuing closer to 425,000 nonimmigrant visas in that time period, indicating we have been able to print nonimmigrant visas for about half of all approved travelers. It will take some weeks before we are back to normal turnaround times on issued visas. We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases with very few delays. Please see our FAQs for further information.

Friday, July 18, 2014

New Policy on Late CSPA Filings

On June 6, 2014, USCIS issued a new interim policy memo on the treatment of late filings under the Child Status Protection Act (CSPA). The policy memo explained what constitutes "extraordinary circumstances," for the purposes of excusing late filings under CSPA. Applicants whose cases were previously denied due to failure to file within the one-year filing window may also file motions to reopen their cases.

The Child Status Protection Act (CSPA) is a special law that allows over-aged immigrants to be treated as minor children for certain immigration benefits, even though their actual ages are over 21.  However, to take advantage of the CSPA, one must must "seek to acquire"  permanent residence status within one year from the date her priority date becomes current.

According to the new policy memo, an aged-out applicant must file an application for adjustment of status (Form I-485), an application for action on approved  petition (Form I-824), or an application for immigrant visa (Form DS-230) within one year.  Merely contacting a lawyer does not meet the "seek to acquire" requirement.

A recent Board of Immigration Appeal (BIA) decision held that USCIS has discretionary power to excuse late CSPA filings due to extraordinary circumstances.  Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).  The new policy memo explains that adjudicators, when deciding whether late filings should be excused, must decide whether extraordinary circumstances exist on a case-by-case basis and consider the totality of circumstances.

According to the policy memo, an adjudicator should excuse late filing if (1) The circumstances were not created by the individual's own action or inaction; (2) The circumstances were directly related to the failure to act within the one-year period, and (3) The delay was reasonable under the circumstances.

Specifically, valid reasons justifying late filings under CSPA include, but are not limited to: serious illness or mental or physical disability during the one-year period; legal disability (such as mental impairment); ineffective assistance of counsel;  timely filing rejected by the USCIS which was followed by a corrected filing within a reasonable time; and death or serious illness or incapacity of legal representative or immediate family member.  Other less compelling reasons such as financial difficulty, minor medical conditions, and circumstances within the alien’s control are not considered extraordinary.

Finally, the policy memo also allows applicants to file motions to reopen cases that were denied after the June 8, 2012 BIA decision solely based on late filings of applications.  Such motions should include evidence establishing extraordinary circumstances based on the new policy memo.