Jacksonville Immigration Attorney Blog

Where can Petitioners residing overseas file their Petitions?

Fri, 10 Feb 2012 14:15:56 -0500

This issue of whether a U.S. citizen spouse who resides outside the U.S. can file directly with the U.S. Embassy or Consulate seems to come up every so often, so I thought that I would do a "reminder" blog on the issue. I had blogged about this issue last year as well as it comes up often when discussing which venue is the best place to file petitions.

For petitioners who reside outside the U.S., they can file directly with the U.S. Embassy or Consulate ONLY IF USCIS has an "office" or public counter presence within the U.S. Embassy or Consulate. If USCIS does not have a public presence within that U.S. Embassy, then the Petition for Alien Relative must be filed at the same Chicago lockbox.

Please call USCIS at 1-800-375-5283 for the exact address of the Chicago lockbox for filing a Petition for Alien Relative. As of February 2012, the address is as follows:

USCIS
P.O. Box 804625
Chicago, Il 60680-4107

This address can change, and frequently does change, so please call or check other USCIS sources before filing your Petition for Alien Petition, should you decide to file a Petition without the use of an Immigration Attorney.

U.S. Embassy in Damascus, Syria is suspending Operations

Mon, 06 Feb 2012 14:31:28 -0500

While I have been expecting this news for some time now, the U.S. Embassy in Damascus, Syria has officially announced that it will be suspending its operations as of February 06, 2012. The announcement also indicates that all U.S. personnel have already left Syria.

The reason is, of course, the escalating violence now in Syria. The announcement indicates that the U.S. Embassy personnel reached out to the Syrian government regarding their concerns for their safety, and that according to the announcement the Syrian government did not "respond adequately."

With the cases that I am handling for Syrian nationals, many of these cases are now being transferred to the U.S. Embassy in Amman, Jordan for processing.

Do Fiancé's of U.S. Citizens Have to Apply for an Employment Card?

Fri, 03 Feb 2012 14:33:24 -0500

A Fiancé of a U.S. Citizen can obtain permission to enter the U.S. through a K-1 visa. Their children can enter the U.S. through a K-2 visa. Upon entry, most people that enter through a K-1 visa, otherwise known as Fiancée visa, want to immediately start working as soon as they find employment.

The question that I receive from many of my K-1 applicants or their spouse is whether they can start working upon their entry into the U.S. My answer is that they must first apply for an employment card. They can apply for an employment card, also known as EAD card, with USCIS. It takes anywhere from 30-90 days for that application to be approved and for the applicant to receive the employment card in the mail.

It is true that the USCIS regulations allow K-1's to engage in employment pursuant to their status of a K-1 visa. However, according to a recent Customs and Border Patrol (CBP) liaison meeting on or about November 09, 2011, CBP made it clear that, "a K1 must apply ...for an EAD."

In the past, CBP officers would write on the I-94 card that work was authorized, and this was often used by K-1's when they applied for work in the U.S. However, it appears that CBP has stopped this practice.

The bottom line is that K-1's must apply for an employment card and wait for the approval of that employment card before they start working in the U.S. Of course, once the K-1 marries the U.S. citizen and files his or her green card application, the employment card can be filed as a part of that application.

Is Administrative Closure the Same as Termination of Removal Proceedings?

Thu, 02 Feb 2012 15:04:18 -0500

For any applicants currently in Removal proceedings, they may have heard the above terms used interchangeably, but in fact they are two completely different forms of relief that an Immigration Judge(s) can grant. Termination of Removal Proceedings basically means that removal proceedings against an applicant are completed and no longer pending, i.e. open, against the applicant. This means that at least for the most current removal proceedings, the applicant was not ordered removed or deported from the U.S. The applicant's removal proceedings are considered completed, and the applicant is no longer in removal proceedings.

Administrative closure, on the other hand, simply means that the applicant's removal proceedings are being put on hold for the time being, and that they must be reopened in the future for the removal proceedings to be resolved. Through Administrative closure, the applicant's case is temporarily taken off the Court's calendar. The applicant still remains in removal proceedings.

In June and ongoing months in 2011, some Memorandums of law were released by Director J. Morton that set forth factors ICE should consider when determining if a case is eligible for prosecutorial discretion. If ICE agrees to apply prosecutorial discretion to a case, then that case will be administratively closed. In this way, that applicant will not be ordered removed and can also apply for an employment card while he or she is in the U.S.

Fraud Waiver APPEAL SUSTAINED BY AAO For Our Client

Mon, 30 Jan 2012 15:31:25 -0500

In an unpublished decision received on behalf of our clients, the AAO (Administrative Appeals Office) sustained our appeal that we filed for the denial of our clients I-601, Waiver for Fraud, Application. Our client had previously filed a fraud waiver on his own without an attorney with the U.S. Embassy in Tirana, Albania. The U.S. Embassy in Tirana, Albania denied his fraud waiver, claiming that the applicants did not show that the U.S. citizen spouse would suffer extreme and unusual hardship if her husband cannot re-enter the U.S. or if she is forced to move to Albania to join her husband.

Our client, an Albanian national, had entered the U.S. with a fraudulent passport that did not belong to him. He applied for asylum in the U.S. but the Immigration Judge denied his case and granted him voluntary departure requiring him to leave the U.S. During his many years in the U.S. while his case was pending, our client met his current wife, a U.S. citizen. They now have a child together.

When he left the U.S. and applied for his green card to re-enter the U.S., the U.S. Embassy in Tirana denied the fraud waiver citing that the U.S. citizen spouse was already living with her husband in Tirana. They reasoned that she could remain there, if she did not want to be separated from her husband. As noted above, our client was required to file a fraud waiver because of his previous use of a fake passport to enter the U.S.

Because our client was not represented by an attorney and filed the fraud waiver on his own, his case was not as strong as it could have been and the Officer(s) were able to deny his case. His wife had submitted substantial research on the country conditions in Albania, proof of their marriage etc. but the Officer was not satisfied.

When I took over the case, I immediately filed an appeal with the Office in Vienna, Austria, which has jurisdiction to review the case from the U.S. Embassy in Tirana, Albania. The case was then transferred to the AAO in Washington, D.C. The AAO decision, which we just received, held that the U.S. citizen would suffer extreme and unusual hardship if her husband is not allowed to re-enter the U.S.

The Immigration Appeals Officer(s) based their favorable decision on the arguments and research we presented on behalf of our clients. Notably, they noted that the U.S. citizen does not speak Albanian, and that she did live in Albania for a year or so, but that she had to return to the U.S. because she could not adjust to living in Albania. Further, we had conceded that our client's use of the fake passport was wrong. We did not try to rationalize his breaking of U.S. laws. We did however point out individual details of the couple's life to convince the AAO to allow them to be reunited here in the U.S.

We are pleased to have worked on this case and to be a part of this family's reuniting, especially given that they now have a child together. Our client, the U.S. citizen spouse, has given her express permission for me to use the details of her case in this blog. Her name has been kept confidential.

CBP has issued a Practice Pointer for TN Visas available to Canadians

Tue, 17 Jan 2012 10:56:28 -0500

CBP is short for Customs and Border Patrol. CBP has recently issued a practice pointer useful for Canadians wanting to enter the U.S. with a TN visa under NAFTA. NAFTA, which is the North American Free Trade Agreement, allows Canadians and Mexicans to be eligible for a TN nonimmigrant visa, if they have an employer willing to sponsor them for a professional position.

Citizens of Canada can make an application for a TN visa at a U.S. class port of entry, at a U.S. pre-clearance or pre-flight station, or a U.S. airport handling international traffic. Usually the applicant must submit the filing fee, copies of all relevant degrees showing he or she is eligible for the professional position, and an offer of employment letter from his or her sponsoring employer on original company letter. The Offer of employment letter must specify the offered job, rate of pay, and basic duties required under that offered job. The letter must also state the length of admission requested. Usually proof that the applicant will NOT immigrate to the U.S. permanently should be provided as well.

A TN visa can be issued for a maximum of three years. However, the length of the visa cannot exceed the applicant's passport validity date. In other words, if the applicant wants a three year visa, then his or her passport must be valid for three years or more to qualify.

If the Canadian national is already in the U.S. and has not overstayed his or her visitor visa (up to 6 moths allowed), then he or she can file a change of status request with USCIS instead of traveling in order to obtain a TN visa.

Some positions that qualify for a TN visa include engineers, accountants, architects, economists, social worker, and many other professional level positions.

TPS has been extended for Salvadorans

Tue, 10 Jan 2012 14:44:49 -0500

USCIS has recently announced that Temporary Protected Status (TPS) has been extended for nationals of El Salvador. The extended period is from March 10, 2012 until Sept. 09, 2013, which is an 18 month extension of time.

Current nationals of El Salvador that have TPS have only a 60 day window within which to extend their status. The deadline is through March 12, 2012. USCIS is NOW accepting applications, so please file as soon as possible if this applies to you. TPS applicants will also receive employment authorization as well that will be valid until September 09, 2013.

To re-register, applicants must file form I-821 and I-765, Application for Employment Authorization. Both forms must be filed together. People who are extending their status do not need to repay the filing fees for the I-821 form, but they must submit the biometrics fee or fee waiver form if they are over 14 years of age. They also must pay the employment authorization filing fee or a fee waiver form if they are eligible for that fee waiver. The fee waiver form is Form I-912.

All of these forms can be downloaded at www.uscis.gov.

News regarding U.S. Embassy in Chennai, India

Thu, 05 Jan 2012 10:53:55 -0500

The U.S. Embassy in Chennai, India has changed the types of cases that it handles. As of January 1, 2012, the U.S. Embassy in Chennai, India no longer handles any permanent immigrant visa applications. Instead, the U.S. Embassy in Chennai, India now will ONLY handle non-immigrant visas, such as B-1 / B-2's (i.e. visitor visas for business or pleasure), student visas, H-1B and other H-1 visas and H-4's for dependents, and other work visas.

The U.S. Embassy in Chennai, India has now become the ONLY U.S. Embassy in all of India that handles L-1 visas. L-1 visas are intra-company visas, which means that a foreign company has opened a branch in the U.S. and wants to transfer one of its main employees (executive or manager) or owner / President to the U.S. in order to expand the business. The foreign business MUST remain open and active in order to qualify for the L-1 visa.

The USCIS has indicated that it wishes to centralize applications so that fraud is reduced and so that Officers can become extremely efficient in one type of case. It seems that centralizing L-1 applications for all of India at only the U.S. Embassy in Chennai, India is a good step to increasing efficiency, as the Officers are or will soon become experts on L-1 visas. L-1 visas are extremely complicated visas, and so it is good for the Officers to become proficient in one type of visa to avoid incorrect applications of law or incorrect denials.

Applicants who had an immigrant visa appointment already at the U.S. Embassy in Chennai, India need not worry, as the U.S. Embassy has indicated that it intends to complete action on those pending cases by March 30, 2012.

U.S. Embassy in Beijing, China has a short Wait Time for a Visa

Sun, 18 Dec 2011 13:59:10 -0500

The U.S. Embassy in Beijing, China has recently announced that it has now issued its one millionth visa this month in December of 2011.

The best news, though, is that the average time to wait for a visa is ONLY one week! Ambassador Gary Locke announced that he is working hard to increase travel between China and the U.S. This is good news for us because Chinese visitors gave the U.S. economy about $ 5 billion in the year of 2010. This is important to know because it provides a good policy for why we should increase immigration to the U.S. and not decrease immigration to the U.S.

U.S. Citizenship can be Revoked as Per New Decision by the Seventh Circuit

Fri, 16 Dec 2011 13:57:28 -0500

The U.S. Court of Appeals for the Seventh Circuit has just issued a decision which allowed Jose Suarez's U.S. citizenship to be revoked. Jose Suarez committed two controlled substance offenses just before he applied for citizenship. The former INS, now USCIS, did not find these offenses when he did his fingerprints because he had not yet been charged. His application for citizenship was approved and he was sworn in as a U.S. citizen.

A couple of months after he was sworn in, he was indicted for the offenses that had taken place before he applied for citizenship. After he served his sentence, his criminal offenses came to the attention of the immigration officials, and under 8 U.S.C. section 1451(a), the United States sought to take away his citizenship.

The U.S. brought charges to take away his citizenship about three years after he was released from jail. The complaint against Suarez alleged that he illegally procured his citizenship because he did not reveal these crimes at the time of his interview. It is important to note here that he was not formally indicted for these until after he was already sworn in! In other words, no criminal charges were pending against him at the time he applied for citizenship. The INS' reasoning was that he committed the crime before naturalization, and he evaded criminal punishment for those criminal acts until he was sworn in as a U.S. citizen.

The Seventh Circuit Court of Appeals had similar reasoning and many additional arguments that they relied on to revoke his citizenship. The bottom line is that he committed the acts before he appeared at the interview with the INS, and therefore he should revealed this information and even if he did reveal this information, he would not have been found to be a person of good moral character.

Mr. Jose Suarez was found guilty of being part of a conspiracy to distribute almost 200 pounds of marijuana. Yes, crimes like these will keep you from becoming a U.S. Citizen, and might even get you removed (deported) from the U.S.

New Immigration Law? Or a Policy Change for Removal Cases?

Fri, 21 Oct 2011 10:29:04 -0500

At my law office, I have been receiving many calls since July of this year asking whether a new law has been passed that helps illegal immigrants. There has been a change, but it is not a new law per se. Basically, the Obama administration has issued a policy change in how they will treat OPEN deportation and removal cases by setting "low priority" and "high priority" case standards. Those individuals with what are considered low priority cases are eligible for prosecutorial discretion, which means that the Immigration Court can "administratively close" or even terminate removal proceedings.

The reason for this policy change is that there are more removal cases than the current immigration court system can handle. In other words, Obama wants to focus on criminal aliens more than the aliens that have no criminal record and the aliens that have a possible means to obtain immigration relief.

We have noticed an increase in the cooperation of the trial attorneys for cases where the individual has no criminal history, and we are thankful for this new policy change.
Although the above is helpful for people who are currently in removal proceedings and have no serious criminal history, individuals with existing deportation or removal orders against them do not directly benefit from this policy change, because their case with the Immigration Court has already been closed. These individuals may benefit if they qualify for a Motion to Reopen based on other grounds, and they can cite this policy change as a reason for the Judge or the BIA to have mercy on them and grant their request.

Also, as recently reported by CNN, Homeland Security Secretary Janet Napolitano has stated on October 19, 2011 that the work raids where hundreds are arrested will stop, and focus of immigration officials will turn to prosecuting and removing criminal aliens.

Processing Time Reports issued by USCIS

Wed, 19 Oct 2011 10:00:42 -0500

The Vermont Service Center, Texas Service Center and National Benefits have issued their processing time reports as of October 19, 2011. Below is a brief summary of some of the most common types of immigration applications for family based categories:

1. K-1 / K-2 / Fiance Visa - Processing time can range from cases filed with a date in March of 2011 to as short a time as 5 months, depending on where the case was filed.

2. K-3 / K-4 / Spousal Visa - Processing time can range from cases filed with a date in March of 2011 to as short a time as 5 months, depending on where the case was filed.

3. I-130's being filed by U.S. Citizen petitioners for their family members - Usually about 5 months if filed with Texas Service Center.

These processing reports can be obtained from www.uscis.gov directly for each service center.

Special on Frontline on Life in Immigration Detention

Fri, 14 Oct 2011 13:43:43 -0500

Starting on October 18th, 2011, on TV on PBS or online at www.pbs.gov, Frontline will present a special called Lost in Detention. This special will feature footage of life in immigration detention as well as information on the Obama Administration's enforcement based immigration policy.

Is Fleeing to Elude a Police Officer while Driving a CIMT?

Thu, 13 Oct 2011 16:07:47 -0500

In a recent decision issued by the Board of Immigration Appeals (BIA), it seems that it is more likely than not that the offense of fleeing to elude a police officer is a crime involving moral turpitude, also called CIMT. In the Decision of Matter of Ruiz-Lopez, BIA 2011, the BIA gave an extensive explanation of which driving offenses constitute a crime involving moral turpitude. The BIA explains that fleeing to elude a police officer is a crime involving moral turpitude because the Respondent knows that the police officer has asked him to stop, and in reckless disregard of the Officer's command, the Respondent still drove in a reckless manner that could endanger his life, others and even the Officer's life, due to the Respondent's willful behavior to flee from the Officer.

As a result of the conviction of fleeing to elude a police officer, the Respondent was found ineligible for cancellation of removal because he had committed a crime that is listed under 212(a) of the Immigration and Nationality Act, which is a crime involving moral turpitude. The Respondent had entered the U.S. without inspection over 10 years before removal proceedings were started again him. Although he would usually be eligible for cancellation of removal due to his presence in the U.S. for over 10 years, because of his conviction noted above, the BIA held that he was not eligible for this immigration relief.

H-1B Count as of October 7, 2011

Sat, 08 Oct 2011 14:31:47 -0500

The most recent H-1B count shows that there are still large numbers of H-1B's available to the general public. Of the 65,000 H-1B visas allowed, USCIS has now received 41,000 H-1B visas. Of the 20,000 advanced degree visas available per fiscal year, USCIS has received about 19,100 H-1B visas.