Author Archives: Lena Korial-Yonan

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.

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.