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, November 20, 2014

President Obama's Executive Immigration Reform Plan - A Bullet Point Summary

Tonight, President Obama announced his executive plan to reform the current U.S. immigration
system.  Below is a summary of the most important points:

  • Deferred Action for Undocumented Parents of U.S. Citizens and Green Card Holders: These parents can stay for three (3) years if they have been in the U.S. since January 1, 2010, pass background checks and pay back taxes.  This rule should take effect in 180 days.
  • Expansion of Deferred Action for Childhood Arrivals (DACA):  This action will benefit more undocumented young people who were brought to the U.S. as a child (before the age of 16). The applicant must have been in the U.S. since January 1, 2010 (extended from June 15, 2007).  The present age of the applicant is no longer a criterion for consideration.  All other DACA requirements will remain in effect. These young people will also be allowed to stay and work in the U.S. for three (3) years. This rule will take effect in 90 days.  
  • Expansion of I-601A Provisional Waiver to include spouses and children of LPRs:  People who have been unlawfully present in the U.S. need a waiver before they may apply for permanent residence status.  Provisional waivers allow undocumented individuals to submit their waiver applications in the U.S. before they apply for a visa to return.  Currently only immediate relatives of U.S. citizens may apply for provisional waivers.  Under the new rule, spouses and children of green card holders will also be eligible for provisional waivers.
  • Foreign Workers with Approved I-140 Petitions May File I-485 Adjustment Applications Earlier:  This is very good news for the 410,000 EB applicants who have been waiting for available visa numbers.  They will be allowed to apply for employment authorization documents (EADs) and travel documents with the I-485s.  Exactly how early they may submit their I-485s will be addressed by regulation. 
  • Foreign Entrepreneurs Will Get Parole Status:  Certain foreign investors will be allowed to enter or stay in the U.S. in "parole" status.  
  • Foreign Entrepreneurs, Researchers, Inventors, and Founders Eligible for National Interest Waivers  (NIW):  They will be allowed to bypass the labor certification process and apply for green cards directly. 
  • STEM OPT Will be Expanded:  The length of time for STEM OPT will be extended.  Subsequent non-STEM degrees are also being considered for eligibility. 
  • Optimal Use of Immigrant Visa Numbers:  The President will direct immigration-related agencies to look at modernizing the visa system, in an attempt to achieve optimal use of the numbers of visas.  For examples, whether dependents should be counted towards the visa quota and recapture of unused visa numbers will be considered.  
  • Prioritizing Enforcement Efforts:  The top three priorities will be: (1) Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and persons apprehended on the border; (2) Persons convicted of serious or multiple misdemeanors and very recent border crossers (those who entered after January 1, 2014); and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. 
(Any questions regarding the President's new plan can be sent to info@szetolaw.com.)

Monday, November 17, 2014

Visa Bulletin Predictions by Charlie Oppenheim

Charles ("Charlie") Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, made the following predictions and projections regarding the upcoming Visa Bulletins pursuant to AILA's DOS Liaison Committee:

1) No major changes in his previous predictions until February and March of next year.  The current trends (including slow movement of India's EB-2 and Eb-3) will continue for a few more months.

2) EB-5 China Movements:  Monthly updates are forth coming on EB-5 China starting January 2015.

3) EB-3 China:  Advancement will continue but at a "slower pace" than early 2014.  Demand for visa numbers may increase due to downgrades to EB-3.  If that does not happen by December or January, advancement will be more rapid starting in February.

Sunday, November 16, 2014

Who is afraid of the National Visa Center?

The United States is a land of immigrants.  Although there are different ways to obtain the American green card, overseas applicants ultimately must go through a consulate interview process before they may travel to the U.S. as landing immigrants.  And before an intending immigrant's file is sent to an overseas American consulate for local processing and interview, it must first be cleared by the National Visa Center (NVC).  NVC processing can be challenging and laden with pitfalls, causing unnecessary delays if not handled properly.

What is the National Visa Center?
Created in 1994, the National Visa Center (NVC) is a branch agency under the U.S. Department of State. It's main function is to pre-process all immigrant visa petitions for final consular processing. After U.S. Citizenship and Immigration Services (USCIS) approves an immigrant visa petition, it sends the petition to NVC for immigrant visa pre-processing. Immediate relative categories (U.S. citizens' immediate relatives) do not have yearly numerical visa limits and, therefore, their cases are processed as soon as administratively possible. Other categories of cases have numerical limits each year, and will be processed only if visa numbers are already available or visa numbers will likely be available soon.  

My case has been sent to NVC - now what?
As mentioned, NVC will only start processing a case if it estimates that visa numbers will be available soon.  Therefore, it is possible that you may not hear from NVC for months or even years. It is extremely important that you keep the NVC and your attorney updated of any changes in your address and other personal information.  When a case is ready to proceed, NVC processing involves several major steps: (1) Invoicing and payment of  the visa application fees; (2) Processing of visa applications and supporting documentation (civil documents and affidavit of support); and (3) Holding the visa petition until an interview can be scheduled with a consular officer at a U.S. Embassy or Consulate.

It is very important that the visa fees and affidavit of support fees are paid correctly and promptly. Without correct payment, NVC will not proceed with the case.  If electronic payment is made, be sure to return to the payment website after several days to print out the payment receipts.  Each visa applicant must pay for his or her visa fee but only one affidavit of support fee is needed for each family.

Visa Application  DS-260
After an applicant paid the visa fees, the next step is to submit a visa application to NVC electronically.  In an effort to transition to more paperless processing, NVC mandated the use of  the DS-260 Immigrant Visa Electronic Application on September 1, 2013, replacing the old paper-based DS-230 Application for Immigrant Visa and Alien Registration (parts I and II).  The DS-260 form requests for more detailed personal information from the applicant and also contains more security-related questions.  Applicants should review and verify all answers very carefully before submitting the form to NVC.  Once submitted, there is no easy way to make changes.

Civil Documents
Civil documents are required by NVC for each immigrant petition, including birth certificates, marriage certificates, divorce judgments, police clearances, criminal record documents, passports, etc.   For many years, originals or certified originals of civil documents are required by the NVC. This policy changed as of November 12, 2014.  NVC now on longer requires or accepts original documents from visa applicants.   Instead, applicants will have to bring with them the originals to the U.S. consulate office during the visa interview.  If a document, e.g., a birth certificate, is not available, an applicant may use secondary evidence to meet the legal requirements.  However, a qualified immigration attorney should be consulted in such situations.

Affidavit of Support (Form I-864)
Many immigrants find the I-864 Affidavit of Support form one of the most confusing forms out there. Their feelings are well justified - many visa petitions are delayed because of mistakes and problems relating to the I-864 form.  Although there are thirteen (13) pages of instructions to the I-864 form, completing the form correctly according to the NVC requirements still proves to be a daunting task for most people.  Part of the confusion may be attributed to the different languages used in the immigration field and in the tax field.  Not only must the petitioners complete the forms correctly, they must also produce all required supporting documents such as tax returns, proof of employment, etc., to NVC.  Things become even more complex for petitioners who need to rely on joint sponsor income or personal assets to meet the financial support requirements.

The "Checklist" letters
Any meaningful discussion of NVC must include its famous checklist letters.  The NVC uses checklist letters to inform the parties about various issues of the case - missing documents, wrong documents, forms incorrectly completed, etc. The checklist letter is similar in nature to the Request for Evidence (RFE) letter issued by the USCIS.  Because of the checklist letter is based on pre-defined format, its content can sometimes be confusing.  Thus far, NVC has not imposed any deadlines for checklist responses, although cases not responded to within one year will be considered abandoned.  Sometimes, NVC may use multiple checklist letters to get the case ready for consular processing, resulting in substantial delay.  

Conclusion
NVC processing is an important phase of the U.S. immigration process for overseas applicants.  It is also a rather complicated process with many legal and documentary requirements.  Intending immigrants and their sponsors should handle the process carefully.  Whenever in doubt, one should seek legal advice from a qualified immigration attorney to avoid problems and unnecessary delays.




How to apply for a U.S. green card?

The immigration laws in the U.S. are extremely complicated.  Many intending immigrants do not understand how they can apply for legal status in the U.S.  The following is a summary of seven major ways that one may apply for a U.S. green card:


1. Petition by Close Family Members
If you have a parent, spouse, child, brother, or sister who are U.S. citizens, then you may be eligible to apply for a green card through them. Certain lawful permanent residents may also apply for their relatives. Each relative category has its own sets of rules.   Waiting times vary considerably according to the closeness of the relationship, the immigration status of your relative, your marital status and your country of birth. For example, if you are married to a U.S. citizen, you may obtain a green card in nine months (or less if you are in the United States). However, if you are petitioned by your brother who is a U.S. citizen, it may take over ten years for you to obtain permanent residence, even longer if you were born in a country with a large backlog such as China, India, or the Philippines. 

2. Petition by an Employer
A U.S. employer who cannot find a suitable and available U.S. worker to fill a job opening may petition for a qualified foreign worker for the opening.   In fact, this is the most common way for F-1 students and H-1B workers to obtain permanent resident status.  Normally, a labor certification needs to be approved before the employer may petition for a green card for the employee.  Certain employment-based immigrant categories are exempt from the labor certification requirement (E.g., extraordinary ability and national interest waiver applicants)

3. Extraordinary Ability / Exceptional Foreign Nationals and  Special Categories
For those people who possess superior education, extraordinary or exceptional ability, or work at multinational companies, they can apply for a green card directly without first obtaining a labor certification, and sometimes even without a job offer.  For some foreigners whose immigration is considered in the national interest of the United States, they may also apply for a green card on their own by requesting for a "national interest waiver".  Eligible religious worker such as priests, nuns, and missionaries may also apply for a green card based on their need to work.

4. Visa Lottery (Diversity Visa)
Every year, approximately 50,000 immigrant visas are available for nationals of countries which have not sent a large number of immigrants to the U.S. during the preceding five years.  The odds are doubled if both your and your spouse apply at the same time.   

5.  Investor / Investment Visas
For those individuals who are able and willing to invest a substantial amount of capital in the U.S., they may also be eligible to apply for an immigrant visa based on the EB-5 visa category.  Their investment and business must meet very vigorous requirements and create at least 10 jobs in the U.S. 

6. Political Asylum
Foreign nationals who have suffered persecution in the past or who fear persecution in the future may be eligible to apply for lawful permanent resident status by applying for political asylum.   The alleged persecution must be based on race, religion, political opinion, nationality, or membership in a particular social group.  

7. Extraordinary Relief
Finally, if you are in removal, deportation, or exclusion proceedings, you may also apply for permanent residence through suspension of deportation or cancellation of removal. These are extraordinary forms of relief granted only to the most deserving applicants only.

Thursday, November 13, 2014

National Visa Center (NVC) no longer requires original civil documents

As of 11/12/2014, the National Visa Center (NVC) will no longer accept original civil documents in support of immigrant visa (IV) applications, according to a recent State Department communication.

Under this new policy, applicants will only be required to submit photocopies of supporting civil documents such as birth certificates, divorce judgements, marriage certificates, and police clearances, etc., to NVC.  Visa applicants will be instructed to take their original documents to their interviews for consulate review.

However, applicants must still submit application forms such as Form I-864, Affidavit of Support, with original signatures.

This change in policy makes good sense as it will facilitate electronic processing of documents and eliminate any risks of loss of original documents.

Sunday, November 9, 2014

Poverty Guidelines for 2014 for Affidavit of Support of Immigrants

Every year, the U.S. Department of Health and Human Services (HHS) publishes the poverty guidelines for the public. In all family-based immigrant visa petitions, the petitioner must promise under oath that the beneficiary- immigrant will not become a financial burden of the U.S. by completing a Form I-864, Affidavit of Support.  The only exception is if the beneficiary has already completed 40 quarters of work in the U.S.  The petitioner (also the financial sponsor) must demonstrate in Form I-864 an income of at least 125% (100 % for petitioners on active duty in the U.S. military who are sponsoring their spouses or children) of the current poverty level for the his household size, which must include the immigrants and their dependents. The 2014 guidelines are listed below:

Size of Household
48 Contiguous States,D.C.U.S. Virgin Islands,Guam & CNMI
Alaska
Hawaii
125% of Poverty Line (U.S. dollars)
2
19,662
24,575
      22,612
3
24,737
         30,925
      28,450
4
29,812
37,275
      34,287
5
34,887
43,625
      40,125
6
39,962
49,975
      45,962
7
45,037
56,325
      51,800
8
50,112
         62,675
      57,637

Add $5,075 for each additional person
Add $6,350 for each additional person
Add $5,837 for each additional person
For many applicants, the I-864 form turns out to be the most challenging document to handle.  In fact, a good number of immigrant petitions are delayed or denied due to the petitioner's failure to properly fill out the I-864 and related forms, or produce sufficient documents to prove financial ability.  If the petitioner cannot meet the I-864 requirements, another person may act as a joint sponsor and complete his or her own Affidavit of Support.  Both petitioner and the beneficiary may also use their assets such as real estate, stocks, bonds, cash, etc., to meet the I-864 requirements. 

EB-5 Program vs. L-1 Visa

Foreign investors who are interested in applying for U.S. green cards often ask this question - Should I apply for the EB-5 employment creation visa or the L-1 multinational executive and manager visa? The answer often depends on the individual circumstances and the facts of each particular case.  This article attempts to highlight the most important considerations.

EB-5 vs. L-1: The Basics
The EB-5 Program allows foreigners to apply for U.S. permanent resident status by investing $500,000 or $1,000,000 dollars in a U.S. enterprise and creating or preserving at least 10 full-time job openings.   The advantages are that applicants do not have to meet any educational or qualification requirements.  Further, the visa numbers are still abundant in general, although demand for EB-5 China visa numbers has been under pressure as of late.

The L-1 visa 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. The basic requirement is that the foreigner must have worked at a foreign company for at least one year as an executive, manager or specialized knowledge employee.  The advantages are that, unlike the EB-5 visa, no specific amount of capital investment is required for the L-1 visa.  There are no upper limits as to how many L-1 visas are issued each year. Further, L-1 visa holders may subsequently apply for U.S. green cards through the EB-1C visa category.

Under both EB-5 and L-1 visa programs, the dependents (spouses and minor children) may also live in the U.S. with the principal applicant.

Approval Rates
Many foreigners often ask about the "success rate" of these two visa program categories. However, there really is no simple answer to this question.  For instance, the approval rates of these applications vary each year, and one should not rely on the statistics of a particular year.   For example, according to the statistics released by USCIS, the denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011 for no apparent reasons.  Further, the approval rates also vary between different countries and industries. For instance, the approval rates of L-1B cases (specialized knowledge employee) have been declining in recent years for IT professionals.

Within the EB-5 category, the USCIS reported that the approval rate of the I-526 application (Immigrant Petition by Alien Entrepreneur) has increased from 53% in 2005 to 79% in 2012.  But it is important to note that many petitions are not adjudicated in the year that it was filed.  These numbers only take into account cases that have been decided by the agency during the particular fiscal quarter or year.  For example, USCIS reported an approval rate of 81% in 2011, when it receipted 3,805 I-526 petitions, approved 1,503 cases and denied 371 cases.  One thing is clear is that the approval rates of each visa category might change due to the agency's changes in internal policy and other administrative reasons. Hence, foreign investor should not rely on the statistics of one particular year as basis for their investment decisions.

Foreign Investor's Situation
Perhaps the more important consideration in choosing between the L-1 visa and the EB-5 visa is the investor's personal circumstances.  The personal investor must evaluate if she has met the basic requirements of either or both of these visa programs.  For example, if an investor has not been working as an executive or high-level managerial position in a foreign company for at least one year, then she will not be qualified for the L-1A visa.  Likewise, if an investor does not have at least US$500K to invest, then he should not consider the EB-5 program.

Some investors actually meet the basic requirements for both visa programs. In those situations, the investor should consider his personal preferences.  If a person prefers to run his own business and does not want to invest substantial amount of money, she probably should consider the L-1 visa. Unlike the EB-5 program, to qualify for an L-1 visa, the U.S. business does not have to employ at least 10 full time employees.

On the other hand, if money is not an issue and the investor has no problem letting other people invest his money, then he should consider an EB-5 Regional Center program.  An EB-5 Regional Center is a legal entity that is established to invest foreign investors' capital in certain pre-defined projects.  There are several hundred regional centers in existence.  Foreign investors must choose carefully which program to invest their capital.   It is important to note that an investor may also choose to invest a million dollars in his own business without using a regional center.  In this situation, the investor is free to choose any type of business to invest in and make his own business decisions.

Risks
Finally, investors must also consider the risks involved when choosing a visa program.  Generally speaking, all investment opportunities involve risks.  Since the L-1 visa requires less initial capital investment and usually allows the investor to "start small". So the risks of financial loss is somewhat limited. Further, to the extent that the L-1 visa holder generally makes his own business decisions, he should be able to control how much risks to take.  On the other hand, since the EB-5 program involves a large amount of capital investment, the risks involved are naturally greater.  Further, if one invests through a Regional Center program, all business decisions will be made by others without any guarantee of a return.   Hence, it is very important to carefully evaluate an investment program before making a decision.  Do not solely rely on the recommendation of intermediaries as these middle companies usually receive kickbacks or commissions from the investment programs.

Saturday, November 8, 2014

December 2014 Visa Bulletin: Employment 3rd continues advancement

In December's Visa Bulletin, the headline news is Employment 3rd's continuing advancement.  Most EB-3 categories advance handsomely: EB-3 Mexico, Philippines and Other Countries advance four (4) months to November 1, 2012 while EB-3 China moves forward by six (6) months to June 1, 2010 after last month's 8-month jump.  (See November 2014 Visa Bulletin.)  However, EB-3 India moves forward by only one (1) week to December 1, 2003.

Similarly, EB-2 India remains unchanged while EB-2 China advances.

EB-2 and EB-3 India applicants must continue to be patient as retrogression and backlog will likely continue for the coming months.

EB-3 China applicants whose priority dates have become current should file for their green card (I-485) applications as soon as possible.  EB-2 China applicants should once again consider "downgrading" to EB-3 to take advantage of the earlier cut-off dates.

Family-based categories generally advance in December.  Family 1st China and India advance two (2) weeks to June 22, 2007.  F-1 Philippines moves forward by six (6) weeks to December 15, 2004.  F-1 Mexico moves forward by five (5) weeks to August 15, 1994.    Family 2A advances three (3) weeks for most countries to March 22, 2013 except Mexico, which moves forward by three (3) months to January 1, 2013.


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

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
01/01/10
02/15/05
C
C
EB3
11/01/12
06/01/10
12/01/03
11/01/12
11/01/12
Other Workers
11/01/12
07/22/05
12/01/03
11/01/12
11/01/12
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)

Tuesday, October 28, 2014

Gestational Mothers are also "Mothers" for Immigration Purposes

The U.S. Citizenship and Immigration Services (USCIS) made the following policy announcement today -

USCIS Expands the Definition of “Mother” and “Parent” to Include Gestational Mothers Using Assisted Reproductive Technology (ART)

USCIS issued a new policy (PA-2014-009) clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers. USCIS and the Department of State (DOS), who exercise authority over these issues, collaborated in the development of this policy. USCIS and DOS concluded that the term “mother” and “parent” under the INA includes any mother who:

  • Gave birth to the child, and
  • Was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.
Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will:

  • Be able to petition for her child based on their relationship
  • Be eligible to have her child petition for her based on their relationship
  • Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.
(Source: USCIS.gov  10/28/2014)

Monday, October 13, 2014

November Visa Bulletin: Major retrogression for Eb-2 India

In November, Employment-Based 2nd Preference (EB-2) India retrogresses more than four (4) years to Feb. 15, 2005.  Although retrogression has been predicted by the State Department, the extent of retrogression is still significant.  Since the October Visa Bulletin is still effective through October 31, Indian nationals with current priority dates in October should file their I-485 applications as soon as possible to secure their employment authorization document and travel document.  It is unlikely, however, that they will receive their green cards any time soon.  EB-3 India moves forward by one week to November 22, 2003.


Other employment-based categories have advanced. For example, EB-2 China advances by three (3) weeks to December 8, 2009; EB-3 China, Philippines, Mexico and Other Countries all move forward by eight (8) months, after October's six-month advancement.  It is interesting to note that China's EB-3 has caught up with its EB-2 category again.  

Family-based preference categories have generally enjoyed some small movements in November.  For example, F2A moves forward by one (1) month for China, India, Philippines, and Other Countries.  F2B advanced two (2) months for China, India and Other Countries to January 1, 2008.  




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

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
12/08/09
02/18/05
C
C
EB3
06/01/12
01/01/10
11/22/03
06/01/12
06/01/12
Other Workers
06/01/12
07/22/05
11/22/03
06/01/12
06/01/12
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, October 10, 2014

PERM Labor Application Processing Time

U.S. Labor Department posted the following PERM processing times as of 10/06/2014 -



Analyst Reviews: 
May 2014  (About 5 months)
Audit Review: 
April 2013 (About 18 months)
Reconsideration Requests: 
October 2014 (almost current)
Government Error Reconsideration:
Current

(Note: the dates denote initial filing dates)

Thursday, October 9, 2014

EB-3 and EB-2 China almost converge in November

In November's Visa Bulletin,  EB-3 China moves forward by 8 months to 01/01/2010, catching up with EB-2 China, which advances 3 weeks to 12/08/2009.  For the first time in recent history, these two visa categories' cut-off dates are within 30 days apart only!

EB-2 India retrogresses to February 2005 in November!

As expected, the November Visa Bulletin reveals major retrogression in the EB-2 India visa category, bringing it back more than four (4) years to 02/15/2005!  

Monday, October 6, 2014

U.S. Supreme Court to hear visa refusal case

A naturalized U.S. citizen filed an immigrant visa to bring her husband to the United States so that they can live together.  Things went well for the most part except the last step - the visa interview. After her husband was interviewed by a consular officer in Islamabad, Pakistan, he was told that everything was okay and he should expect to get his visa soon.  However, his visa was never issued despite repeated follow-up inquiries.  At the end, he was advised that his visa application was refused and his file was returned to the United States.

Hundreds of thousands of foreigners apply for U.S. visas every year.  Although many of them got their visas, there are also considerable number of applicants whose visas were refused.   According to the U.S. State Department's Report of the Visa Office 2013, 288,957 immigrant visas and 2,230,296 non-immigrant visas (e.g., tourist, business, student) were refused by U.S. consulates. When a visa application is denied, the applicant does not really have any recourse.  Until recently, that is.  

The above-mentioned U.S. citizen, Fauzia Din, took the visa refusal to court.  Legally speaking, the U.S. courts do not have much authority over visa issues because Congress was given "plenary power" to make rules regarding admission of foreign nationals by the Constitution.  Congress wrote several statutes which give almost unfettered power to the State Department and Consular Officers to issue and to deny visas.  Consequently, the courts rarely disturb the decisions of Consular Officers. Here, however, the Ninth Circuit Court of Appeal took side with Ms. Din and remanded the case to the State Department to provide more specific reasons for refusing visa to her husband. According to the Ninth Circuit, specific reasons need to be given to show that the decision was made in good faith and for legitimate reasons.

The Government appealed the Ninth Circuit's decision to the U.S. Supreme Court, which recently agreed to hear the case.  (John F. Kerry, Secretary of State, et al., v. Fauzia Din).  The Government argues that by law the Consular Officer only needed to provide a notice of refusal of the visa application without specifying the exact reasons for his decision.  Here, the Consular Officer already stated "terrorist activities" were grounds for inadmission.

It appears the the "terrorist activities" ground of inadmission was triggered based on the husband's employment at the Afghan government's Ministry of Social Welfare as a clerk before, during, and after the Taliban occupation.  Ms. Din argued that the visa refusal could not have been justified since her husband only worked as a low-level clerk for the government.

The Supreme Court will decide this case in the coming months.  To a large extent, the Supreme Court's decision will depend on whether Ms. Din's Constitutional rights have been violated.  Ms. Din has liberty interest in marriage and to live with her spouse in the United States.  If her rights have been violated, the question remains whether her rights trump the national security powers of the State Department regarding visa issuance.   However, other Constitutional issues and statutory interpretation issues may also affect the outcome of this extremely important case.  

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.