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Monthly Archives: May 2011

Current H-1B Visa Numbers Still Available

As most applicants for H-1B work visas probably know, they were able to file their H-1B petitions starting on April 1, 2011. As of May 13, 2011, USCIS has received on or about 11,200 regular cap H-1B cases and on or about 7,900 advanced cap (i.e. U.S. earned Master’s) H-1B cases. The USCIS allows 65,000 regular cap cases and 20,000 advanced cap cases for each year before they begin refusing to accept H-1B petitions.

As you can see, H-1B seekers that are still looking for sponsors have some time left for them to find a sponsor and submit the voluminous paperwork required to obtain an H-1B visa.

USCIS has extended TPS for Haitians until 2013

USCIS has just announced that TPS has been extended for Haitians until January 22, 2013. This is an 18 month extension. Haitian applicants that have not filed for TPS may do so immediately. The DEADLINE for filing a TPS application for the first time is November 15, 2011. This deadline can be extended, but as of May 19, 2011, this is the current deadline.

Haitians that currently have TPS must wait to re-file, since USCIS is planning on issuing a notice of instructions for those individuals. However, Haitians who currently have TPS status must be sure to file to extend their TPS status before August 22, 2011.

Any Haitians that enter the U.S. illegally now are not eligible for TPS. Haitian applicants that apply now for TPS need to show they continually resided in the U.S. since January 12, 2011. All individuals who want to file for TPS should file forms I-821 and I-765, as well as any required fees or fee waiver and required documentation including a copy of one’s passport, I.D. and a birth certificate with translation if available. Other documents may be required, as determined based on each person’s circumstances.

New Rules for Petitioners Residing Abroad Filing Relative Petitions

USCIS recently released a news alert that changes the filing procedures for U.S. petitioners residing abroad who wish to file for their immediate relatives. As of August 15, 2011, U.S. citizen petitioners who want to file a Petition for Alien Relative for their spouses or other family members MUST file their forms with the Chicago Lockbox Facility. In the past and until August 15, 2011, some petitioners residing abroad were able to file their immediate relative petitions directly with their U.S. Embassy via the Department of State at that U.S. Embassy. Filing directly with U.S. Embassies has generally been a faster way to approve visa petitions.

As of August 15, 2011, USCIS has centralized the filing location of the Immediate Relative Petitions to the Chicago Lockbox address, which can be found on the USCIS website.

There is an exception to this change, which is that if there is an international USCIS office having jurisdiction over the area where a petitioner lives, then those petitioners can continue to file their Immediate Relative Petitions with the international USCIS office.

New Notice to Appear Policy for Florida

As of May 16, 2011, USCIS local office in Tampa, Florida has instituted a new notice to appear policy for denials of I-751 cases. Once the I-751 case is denied, now USCIS will issue a notice to appear without waiting the required 30 day period within which applicants can file their motion for reconsideration.

A notice to appear is the charging document USCIS uses to place someone in removal proceedings. The notice to appear, also called NTA, should state all the allegations against the intending immigrant, and should also state a date or “soon to be announced” annotation for when and where the applicant must appear for immigration court. It is extremely important that the address for the applicant is correct on the Notice to Appear, and if it is not, then the applicant must take all precautions necessary to make sure the address gets corrected. Otherwise, applicants can fail to receive a hearing date and then be ordered deported in absentia. Once the case is filed with the immigration court, applicants can change their address with an immigration court by filing form EOIR-33/IC.

During the immigration court process, the applicant must explain to the Judge through filing certain application(s) for immigration relief as to why they should not be deported from the U.S.

This new policy of immediately issuing NTA’s upon denial has been confirmed as taking place by the USCIS office in Tampa, Florida. Although Jacksonville denies that they have accepted this procedure as their official policy, I know from a new client coming to my office that this procedure has taken place in the USCIS office in Jacksonville, FL, although certainly not consistently and only on a case by case basis.

This information is being provided because many applicants filing form I-751 believe that the process is simple, but unfortunately if the USCIS denies the case for any reason, this could now result in the applicants being placed in removal proceedings and possibly getting deported if the matter is not resolved favorably.

News for Orphan Adoptions in London

According to a questions and answers session with the U.S. Embassy in London and AILA (American Immigration Lawyers Association), orphans are not eligible for B visas because it is likely that they are intending immigrants.

Instead, according to the February 22, 2011 questions and answers session, the adoption for an orphan should take place in the United Kingdom (U.K.). In order to do an adoption, the U.S. citizen must become a resident in the U.K. which can take up to 10 weeks. Once the adoption is complete, then the U.S. citizen can file the appropriate paperwork with USCIS and the orphan can remain in the U.K. until the paperwork is approved and completed.

This piece of information interested me, because the humanitarian in me would want the U.S. Embassy to issue the B visa to the orphan to allow him or her to come to the U.S. while waiting for the green card processing to continue. Unfortunately, the U.S. Embassy in London is taking the more strict approach, and under a strict application of B (visitor) visa laws, they are correct that an orphan has few ties to the foreign country and probably would become an immigrant to the U.S. once adopted.

Immigration Case Sample: Removal Proceedings

I recently accompanied a client of mine to the Immigration Court in Orlando, FL where he had his final individual hearing. The specifics of his case are that he entered on a fiancé visa and then obtained his conditional resident card. However, before he obtained his permanent resident card, otherwise known as the 10-year green card, he became separated from his U.S. citizen wife. He unfortunately did not reveal this fact to the Immigration Officer that interviewed him and his wife. So when the couple appeared for an Interview at USCIS Immigration Office and were physically separated during their interview, they provided conflicting statements. This led the Immigration Officer to deny their case. The Officer denied the permanent resident petition, finding that the couple had engaged in marriage fraud.

The client then hired my office to represent him in removal proceedings. I did not represent him until he was already placed in removal proceedings. In addition to re-filing the petition form, I accompanied him to his final hearing where he presented evidence and testimony to the Judge to show that he in fact had entered the marriage with his now ex-wife in good faith and that there was no marriage fraud.

After I completed my questioning of my client about his dating and marriage history with his now ex-wife, the government attorney then spent over one hour cross-examining my client. Some unfortunate details were revealed, like my client had a child with another woman during his marriage to his U.S. citizen sponsor.

However, in the end, the Judge granted my client’s application for a waiver in good faith and now my client will become a permanent resident of the U.S. It bears noting that we were victorious in this case because I stressed to the Immigration Judge that the standard is not whether their marriage was perfect or whether my client was a perfect husband, but rather the standard was whether the marriage was entered into in good faith at the time of their engagement and their marriage. I was able to show that my client did not have any money at that time that he could have used to bribe the U.S. citizen, nor was there any other motivation for the U.S. citizen to marry him and sponsor him, except for the hope of building a life together. My client had also taken a trip outside Jacksonville, FL with his then wife and had other proof of their bona fide marriage.

Not all cases like the one described above will have the same result, obviously, but the above case details are being provided because I know my clients and readers are interested to know about recent real-life immigration cases and their results.

New Series Being Started

I have decided to start a new series where I provide examples of cases I am currently working on or recently worked on and their results. I have already called my state bar ethics and advertising number to obtain permission, and I was told that for the current rules I am allowed to provide on my website and on my blog real-life examples of cases I have personally handled, as long as the information is not false or misleading.

So this series will start as soon as possible, and I will include more difficult cases.

NSEERS Registration is in Process of Being Removed

USCIS has implemented the first step in removing the requirement of certain nationals from registering with NSEERS. After September 11, 2001, certain nationals of countries were required to register with NSEERS. If they did not register with NSEERS, then USCIS could deny their green card application.

I remember taking many of my clients at the time, nearly 50 of them, that were subjected to this requirement. I took them by hand to the local USCIS office in Jacksonville, where I remained until each one was provided a FINS number to show proof that they complied with NSEERS registration. At that time many of my clients were scared because many of them were out of status and feared they would be arrested or placed in removal proceedings.

While none of my clients were arrested or even placed in removal proceedings, there were reports that individuals were arrested in the Tampa, FL area and other areas.

Thankfully, this period is now passing away, as USCIS has taken the first step to getting rid of this requirement of registering for NSEERS. Now, nationals of some of the countries are not required to register with NSEERS. Some of the countries now that are not required to register with NSEERS includes the following: Iran, Eqypt, Lebanon, Morocco, Syria, Iraq, Jordan, Kuwait, Pakistan Afghanistan and other countries.

However, the USCIS memo does not address how USCIS will handle cases where applicants now waiting for their green card did not comply with the previous NSEERS registration requirement. From experience, my understanding is that upon request, ICE will meet with applicants and allow them to register now, to meet the previous requirement. Of course, it is in ICE’s discretion and handled on a case-by-case basis. I also advise all applicants to be represented by counsel before they walk into ICE’s doors, to ensure their rights are protected.