Proposed CIS Fees May Also Test Lawyers' Own Financial Abilities Proposed CIS Fees May Also Test Lawyers' Own Financial Abilities by David M. Morris, Esq. On February 1, 2007, USCIS proposed a major increase in filing fee rates [1] which will severely test the average alien's ability to afford these costs. However, the aliens will not be struggling alone. For solo practitioners and small firms, the new rates will test the common practice of advancing filing fees for their clients. Within the immigration legal community, the standard practice is that individual clients pay all legal fees and CIS filing fees up front, before a case is filed. Solo lawyers and small firms following this practice are, in essence, serving as a bank by providing 60/90 day financing for their corporate clients-be they wealthy Fortune 500 companies or risky start-ups. For example, the average H-1b visa petition for premium processing costs $3,190 in CIS filing fees. Let's take another example. So what are some options available to solo practitioners and small firms? Endnotes
Resuscitating Nonimmigrant Visa Status In The United States Resuscitating Nonimmigrant Visa Status In The United States by Cyrus D. Mehta The general rule is that one can only apply for a change or extension of nonimmigrant visa status while the applicant is still in status. For example, if an individual is admitted into the US in business (B-1) visa status, which is valid till March 30, 2007, and his or her business purpose will not be accomplished prior to March 30, the extension application must be filed on or before that date. Section 214.1(c) (4) 8 Code of Federal Regulations Section 214.1(c)(4) provides: A parallel provision, 8 CFR Section 248.1(b), excuses individuals who are filing untimely applications for change of status. Example of the H-4 Status Who Failed to Timely File an Extension There are many situations when individuals unwittingly find themselves out of status. The H-4 spouse, in our example, began to accrue unlawful presence from the date of the expiration of the H-4 status, as reflected in the Form I-94 document. Conclusion
Understanding The FBI Name Check Policy That Is Causing Naturalization Delays Understanding The FBI Name Check Policy That Is Causing Naturalization Delays by Cyrus D. Mehta A detailed internal memo from the US Citizenship and Immigration Services (USCIS) explains the labyrinthine FBI name check procedure that has caused delays to many people applying for citizenship or other immigration benefits, such as permanent residence. The Interoffice Memorandum by Michael L. Military deployment; Age-out cases not covered under the provision of the Child Status Protection Act (CSPA) and applications affected by sunset provisions such as Diversity Visas (DVs); Compelling reasons as provided by the requesting office (e.g. critical medical conditions); and/or Loss of social security benefits or other subsistence in the discretion of the District Director. According to the memo, the expedite request has to be initiated by the USCIS official via fax and not by the applicant. Details On Name Check Procedure Different FBI Responses Results Of Law Suits Conclusion About The Author
Current Immigration Highlights - March 2007 Current Immigration Highlights - March 2007 by Alan Lee, Esq. 1. In Support of I J Chase In our view, Immigration Judge Jeffrey Chase of the New York Executive Office for Immigration Review has been pilloried enough and should be allowed to return to the bench very shortly if he has the desire to do so. According to the New York Times of March 13, 2007, he has been relieved of his courtroom duties and reassigned to a desk job following a rebuke by the Second Circuit Court of Appeals last year and its recent recommendation that the Board of Immigration Appeals scrutinize all of his decisions which are pending on appeal. 2. In U.S.C.I.S.' FBI name checks have become the elephant in the room in U.S.C.I.S. adjudications as there are now acknowledged large numbers of applicants for adjustment of status to permanent residence or naturalization whose cases cannot be adjudicated because of the failure of the FBI to complete name check clearances on a timely basis for U.S.C.I.S. 3. 4.
Permissible B-1 Activities Permissible B-1 Activities by Paula N. Singer, Esq. The most common immigration status for entry into the United States for business is the B-1, Visitor for Business, which includes the visa waiver for business status (VWB). Foreign nationals who enter the United States in B-1 status can work temporarily in the United States in connection with their foreign employer’s international transactions. The Three-Pronged Test The immigration service developed three tests to apply to an activity taking place in the United States to distinguish the activity as employment (or not). The “U.S. The Hong Kong Tailor Analysis The Hong Kong tailor came into the U.S. periodically with photos of garment choices, fabric samples, and a tape measure. The immigration law question was whether his activities in the United States constituted employment or were appropriate business visitor activities. The Honorarium Exception The services are conducted for the benefit of the institution. About The Author
BIA Rules That Child Status Protection Act Retroactively Applies To Children Of US Citizens BIA Rules That Child Status Protection Act Retroactively Applies To Children Of US Citizens by Cyrus D. Mehta The Board of Immigration Appeals (BIA) in Rodolfo Avila-Perez, 24 I&N Dec. 78 (BIA 2007) ruled that the Child Status Protection Act (CSPA) applies to beneficiaries of immediate relative visa petitions that were approved before August 6, 2002, its date of enactment. Section 201(f)(1) of the Immigration and Nationality Act (INA) freezes the age of a child upon the filing of a petition (Form I-130) by the US citizen parent. At issue is whether the CSPA protects the status of a child who was the beneficiary of an I-130 petition and who turned 21 before August 6, 2002. The facts in Rodolfo Avila-Perez did not conform to government agency prescriptions. The Respondent was born on April 4, 1976. The BIA disagreed, and took pains to interpret Section 8 of the CSPA, which has not been codified in the INA. What is the scope of Rodolfo Avila-Perez? Endnotes About The Author Cyrus D.
BIA Decides CSPA Applies Retroactively BIA Decides CSPA Applies Retroactively by Charles Wheeler Four and a half years after the Child Status Protection Act (CSPA) was enacted, the Board of Immigration Appeals (BIA) has answered the open question regarding the law's retroactive application. Advocates had been arguing for an expansive interpretation of the statute, which would have provided coverage to children who were immediate relatives at the time the visa petition was filed, regardless of whether that was before or after August 6, 2002, the effective date of the CSPA. In a published decision issued on February 9, 2007, the BIA has held that the law applies to visa petitions filed and approved before the effective date of the CSPA, even if the beneficiary aged out and failed to apply for adjustment of status prior to that date. Effect on Immediate Relatives Both the BIA and the district court cases dealt with similar facts. Effect on Preference Category Beneficiaries About The Author
H-1B Spouse’s Dependent Time Does Not Count Towards The 6-Year H-1B Limit H-1B Spouse's Dependent Time Does Not Count Towards The 6-Year H-1B Limit by Cyrus D. Mehta In a positive development, the US Citizenship and Immigration Services (USCIS) issued a Memo clarifying that time spent as a dependent spouse of an H-1B or L-1 visa holder does not count against the maximum allowable periods of stay available to principal visa holders. The Memo issued by Michael Aytes, Associate Director, Domestic Operations, USCIS, dated December 5, 2006 provides much needed guidance on time periods in H-1B as well as the accompanying dependant status. A. Prior to the issuance of the Memo, it was unclear whether time spent in H-4 and L-2 (spouses of H-1B and L-1 principal visa holders) counted against the maximum period of time available to the principal nonimmigrant visa holder. The Memo now clarifies that any time spent in H-4 or L-2 status will not count against the maximum period of time applicable to the principal visa holder. B. C. The Memo resolves this problem. Cyrus D.
Strategies Every Immigration Attorney Should Consider In Light Of DHS's Pending Adjustment Application Removal Procedures Strategies Every Immigration Attorney Should Consider In Light Of DHS's Pending Adjustment Application Removal Procedures by Robert G. Nadalin, Esq. I. Are Employment Based Nonimmigrant Visa Holders Who Concurrently Pursue an Adjustment of Status Application Based on an Employment Based Immigrant Petition Subject to Removal Proceedings at the Discretion of the Government? Recent comments made by government officials indicate that the Department of Homeland Security takes the position that it can refer aliens with pending adjustment of status applications to immigration court for removal proceedings.[1] Practitioners need to decide how best to protect their clients and may choose to extend an underlying nonimmigrant status for eligible clients as a means of obtaining additional protection against this new policy. The authority to place applicants with pending adjustment of status cases into immigration court proceedings is questionable. II. H-1B and L-1 O-1 and E-visa Holders
Emergent Global Classes And What They Mean For Immigration Politics Emergent Global Classes And What They Mean For Immigration Politics by Saskia Sassen Transnational professionals, government officials working on cross-border issues, civil society activists, and specific segments of the immigrant population are each beginning to emerge as groupings that are simultaneously national and global. For shorthand we might think of these as global classes, even though it stretches the standard meaning of the concept of class. Relevant to the immigration question as we enter the 21st century is that the formation of these global classes has begun to denationalize particular aspects of the nation-state. In my reading, insufficient attention has been paid to the fact that critical components of globalization actually are happening inside the nation-state itself, including in the economy, society, and the polity. Transnational Professionals: Migrant Workers with Rights National attachments and identities are becoming weaker for global firms and their customers.
Ten Pitfalls To Avoid With The Affidavit Of Support Ten Pitfalls To Avoid With The Affidavit Of Support by Charles Wheeler In mid-July the USCIS finalized its regulations governing the affidavit of support. The new forms (I-864, I-864EZ, I-864A, and I-864W) are now required to be used in all family-based immigrant visa cases, as well as some employment-based cases. #1. The worker can only earn four quarters per calendar year, but he or she is eligible to gain credit for all the quarters earned by the spouse during marriage, assuming the couple is still married. The other way for the intending immigrant to qualify for the I-864 exemption is to be a child (other than a stepchild) under 18 who will reside in the lawful custody of at least one U.S. citizen parent after immigrating. Complete and file Form I-864W when the intending immigrant either has the necessary 40 qualifying quarters or will derive citizenship. #2. Line 9 of the I-864 asks the sponsor to identify the accompanying, derivative family members. #3. #4. #5. #6. #7. #8. #9.
25 Questions To Ask Before Filing An E Visa At A Consulate 25 Questions To Ask Before Filing An E Visa At A Consulate by Gregory Siskind Attorneys assisting clients with E-1 and E-2 Treaty Visa cases file cases at dozens of consulates around the world and must familiarize themselves with the local procedures in order to advise clients on what to expect in the process and maximize the chances for approval. Does the country even have a treaty? About The Author Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Filing I-130 Petitions For Immediate Relatives In India Filing I-130 Petitions For Immediate Relatives In India by Poorvi Chothani The U.S. Embassy at New Delhi, India supports a United States Bureau of Citizenship and Immigration Services Office (the USCIS Office) under the Rome Immigration District Office. The USCIS Office accepts petitions (I-130) for Alien Relatives filed by qualifying U.S. citizens who wish to sponsor family members as “immediate relatives.” From July 4, 2004, the USCIS had permitted U.S. citizens who had resided in India for a minimum of 60 days, immediately prior to the filing date, to file I-130 petitions at the USCIS Office. I-130 petitions that are filed at the USCIS Office are processed promptly and often within days. The new requirement of being a resident of India is far more onerous and complex. Registration Most foreign nationals including U.S. citizens who wish to come to visit India for work, business, and pleasure or otherwise require a valid passport of and a valid, appropriate Indian visa. Endnotes
BIA Rules Favorably On "Automatic Conversion" Provision In CSPA BIA Rules Favorably On "Automatic Conversion" Provision In CSPA by Cyrus D. Mehta In “Pushing The Envelope With The Child Status Protection Act ” (November 14, 2003), this writer explored an intriguing provision, Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h)(3) of the Immigration and Nationality Act (INA), which states: “Retention of Priority Date – If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” Section 203(h)(3) allows derivative children who cannot take advantage of the CSPA to be able to automatically convert to the “appropriate category” and allow the alien to retain the original priority date. This article originally appeared on www.cyrusmehta.com on September 15, 2006. Cyrus D.