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Monthly Archives: July 2011

Good BIA case for Iraqi Christians Applying for Asylum

The Board of Immigration Appeals recently issued a favorable case regarding Iraqi Christians. Although the Immigration Judge did not allow the applicant to reopen her deportation order to apply for asylum from Iraq, the Board of Immigration Appeals (BIA) reversed the Judge’s decision and allowed the applicant’s deportation order to be reopened.

This is a helpful case, because the motion to reopen was NOT timely filed within 90 or 180 days. In fact, the applicant waited 3 years before filing this Motion to Reopen. The Judge who denied the Motion to Reopen is with the Immigration Court in Detroit, MI. Based on this decision, now the applicant will have the opportunity to apply for asylum and withholding of removal.

The Board of Immigration Appeals reopened the applicant’s case because they stated that based on the country conditions information provided by the applicant, the country conditions for Christians in Iraqi have worsened in the years of 2008 and 2009. The BIA held that the country conditions have worsened to such an extent since the applicant’s prior deportation hearing that the deportation proceedings should be reopened to allow the applicant to apply for asylum and withholding of removal. The matter was remanded, i.e. sent back, to the Immigration Judge for his consideration of the worsening situation in Iraq for Christians and for entry of a new decision.

This decision is unpublished and a copy of the decision was emailed to our office for our own information from the applicant’s attorney.

Good News for Children of Fiancé Visa Holders (K-2)

The Board of Immigration Appeals, also called BIA, recently issued a favorable decision on June 23, 2011 regarding the “children” of fiancé visa holders who turn 21 years old after their entry into the U.S. as a K-2. Children that are under 21 years old can enter the U.S. with their mother, or sometimes their father, as a K-2 and the parent enters as a K-1, fiancé of a U.S. citizen. However, questions arise when that child turns 21 years old.

The BIA has provided a clear cut rule that states that if the child enters the U.S. while he or she was under 21 years of age, then that “child” may still adjust status by being petitioned by the U.S. citizen step-parent, even if he or she turns 21 years of age before the green card is issued.

This is a very good rule for K-2 visa holders, since for other step-child petitions, there is a general rule that the marriage between the biological parent and the step-parent should have occurred before the child was 18 years old. However, the BIA has changed this rule for applicants that enter with their parent under K-1 / K-2 visas.

In the case of Matter of Le, BIA 2011, the applicant entered the U.S. at the age of 19 along with his mom. His mom entered the U.S. as a K-1, fiancé of a U.S. citizen, and he entered as a derivative child, K-2. He entered as a minor child who was accompanying, or following to join, his mother. The mom of the applicant married the U.S. citizen when the child was already over the age of 18 years old. The USCIS Denied the applicant’s green card, stating that he no longer qualifies as a step-child, since he was not under 18 years when the marriage took place. He was placed in removal proceedings, and the Immigration Judge then ordered him removed, i.e. deported, from the U.S. because at that time he was also over the age of 21 years old and no longer met the definition of “child.”

The BIA disagreed with both USCIS and with the Immigration Judge, because they held that it is the age of the child at the time of entry into the U.S. that controls, and not the age of the applicant when the marriage of the mother and step-parent took place or age of the applicant at the time that his green card is adjudicated, that matters, if the applicant entered as a K-2 visa holder.

The BIA remanded the case back to the Immigration Judge with instructions for the Immigration judge to grant the applicant’s adjustment of status petition even though the applicant was already over the age of 21 years and even though the marriage of his biological mother to his step-father occurred after he had already turned 18 years old. These special provisions apply strictly to children that enter the U.S. as a k-2 visa holder, which is a child of a K-, fiancé of a U.S. citizen.

Most Recent H-1B Count and New Developments

The H-1B visas for fiscal year 2012 are still available. To date, only 18,400 H-1B petitions have been received by USCIS, with the maximum allowed being 65,000 per year. For the master’s cap, USCIS has received 11,900 H-1B petitions, with the max allowed of 20,000 per year.

Employers are apparently more reluctant these days to file H-1B visas, due to the restrictions that USCIS has been placing on H-1Bs, including more difficulty in getting approved in the first place. Employers are simply scared of USCIS, and very well they have good reason to be, as all I’s must be dotted and all t’s must be crossed, as the saying goes.

In addition, USCIS has been recently denying some cases that would be approvable in the past. From my conversations with other immigration attorneys and from research online at www.aila.org, USCIS seems to be denying the market research analyst H-1B petitions, for example, where in the past a market research analyst was considered to be “H-1B caliber.” Now USCIS sends requests for evidence and then will deny many of these market research H-1B cases, citing that the employer does not need a market research analyst.

In addition, in some H-1B transfers, the USCIS is requesting the beneficiary’s pay stubs and W-2’s from previous years, to ensure that the beneficiary was maintaining status before his H-1B can be transferred. Therefore all H-1B visa holders must make sure that they are in strict compliance with the information provided to USCIS in connection with their H-1B visa, to avoid having their future H-1B transfer denied.

Emergency Request for Approval of Green Card

Recently I handled a case for one of my clients, where the U.S. citizen petitioner / mother sponsored her 20 year old daughter. We had filed her adjustment of status petition on or about May 24, 2011, and we needed the I-485 approved on or before June 24th, as she was turning 21 years of age on June 25th, 2011, and possibly then “aging out”. I explained to the client that time is of the essence, and then I started immediately working on the case.

Once it was filed, I made several info pass appointments where I was able to explain to USCIS the “emergency” nature of this case due to the impending deadline. I also sent several faxes and, just when I started to get worried, I received a phone call from USCIS stating that they would provide us an emergency appointment on June 24th, 2011 at the local office in Jacksonville, FL. Luckily, all the documents were in order and the Officer was able to approve the case. We are very proud that we were able to assist this family.

Of course, the facts above may be different from yours and therefore, please do not rely on the facts above to mean that your case will be approved as well.