Philadelphia Immigration Lawyer Blog

On May 27, 2008, Customs and Border Protection announced three specific changes to the “International Registered Traveler" (IRT) program which will allow for expedited clearance for certain pre-approved, low-risk air travelers into the U.S. which it previously announced on April 11, 2008.

I previously described the program in an earlier blog, here.

The first announced change is to the name of the program itself—the new name is “Global Entry”.

The second change is that the program will start on June 6, 2008 which is four days earlier than the date announced in the April 11, 2008.

Finally, the new notice updates the contact information for the Enrollment Center at Washington Dulles International Airport, Sterling, Virginia. The new telephone number for that location is 703-661-2854; the new fax number is 703-661-0013.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Passports, Travel Documents

Bookmark:

In yet another example of the possible later effects and great dangers of falsely claiming U.S. citizenship, the Fifth Circuit Court of Appeals has remanded a case involving an adjustment of status applicant who is married to a U.S. citizen but who falsely claimed to be a U.S. citizen back in 1998 in order to gain admission to Drexel University as a part-time, evening program. The applicant is in removal proceedings and the government is claiming that he is inadmissible (and therefore cannot adjust his status to permanent residency) because of his prior false claim to U.S. citizenship. The case is Ismail v. Gonzales.

Under the law (INA §212(a)(6)(C)(ii)(I)) person who "falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter or any other Federal or State law is inadmissible."

The immigration judge ruled that the applicant received a "benefit" under state law when he enrolled as a Drexel student and therefore he is inadmissible and ineligible for adjustment of status. On appeal, the BIA upheld the decision of the IJ but on different grounds -- that the applicant’s false claim had been made to accomplish the "purpose" of gaining admission to college. The Federal Court has remanded the case to the BIA so that it can decide whether the false claim to U.S. citizenship was made to gain a benefit under state or federal law.

The Federal Court did this because under the same court’s opinion in Theodros v. Gonzales, it held that an applicant for adjustment who had made a prior false claim to U.S. citizenship in order to gain employment in the private sector was, in fact, inadmissible and not eligible for adjustment because private employment is a “benefit” under state law. The court’s remand was so that the BIA could consider its decision in light of Theodros.

While the BIA will now reconsider the case, the bottom line is that it is a big mistake for any alien to falsely claim U.S. citizenship. It is a violation of the law and, as we can see in this case, in Theodros and in other cases, it is a mistake that can come back and haunt an applicant years later in circumstances (such as trying to adjust status based on a bona fide marriage to a U.S. citizen) that otherwise would be a straightforward application for permanent residence.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

Bookmark:

On May 23, 2008, the DHS issued a supplemental set of Questions and Answers related to the new interim rules regarding extending OPT from 12 t0 29 months for certain qualified F-1 students with a STEM degree (science, technology, engineering or mathematics) who are employed by businesses enrolled in the E-Verify program.

The interim final rule was released on April 4, 2008 and the initial set of Question and Answers was published earlier.

The new rule also addresses the issue of when an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program, the automatic extension of the period of stay and work authorization for all F-1 students with pending H-1B petitions and allowing students to apply for OPT within 60 days of graduation.

Rather than repeating the Supplemental Qs and As, here is the link to them.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Student Visas

Bookmark:

On May 23, 2008, the USCIS announced that it will soon require that Form I-751 (the Petition that is filed by individuals who were granted conditional residential status through marriage to a U.S. citizen in order to remove the conditions on that permanent residence status) be directly filed with either the California or Vermont Service Centers, depending on the residence of the applicant.

All Forms I-751 are currently acted on at either of these two Service Centers anyway. However, depending on the applicant’s residence, applicants can still send them to the Nebraska and Texas Service Centers—but not for long.

For now, the USCIS is “requesting” that all Form I-751 petitioners file their petition with the California or Vermont Service Centers as follows:

If you live in Alaska, American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming, you should file your I-751 with the California Service Center at P.O. Box10751, Laguna Niguel, California 92607-0751.

If you live in Alabama, Arkansas, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia, you should file your I-751 at the Vermont Service Center at 75 Lower Welden St., St. Albans, Vermont 05479-0001.

Once the formal change in the I-751 instructions has been made, the USCIS will no longer “request” that I-751 applicants file only with either the CSC or the VSC, but will require it. Any applicant who for now can still file with the Nebraska or Texas Service Centers, is advised to just go ahead and comply with the soon-to-be-required change of filing locations.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

Bookmark:

Here is a posting on the basics of a foreign national who is placed in removal proceedings but who then marries a U.S. citizen.

Basically, the law says that when a foreign national marries a U.S. citizen after having been placed in removal proceedings, he or she cannot adjust their status to permanent residency until the foreign national resides outside the U.S. for a two year period beginning after the date of the marriage—something that clearly creates a great hardship for any such married couple. Fortunately, the law also allows for a “waiver” of this requirement if the couple can show by clear and convincing evidence that the marriage was entered into in good faith and that it was not entered into simply for the purpose of obtaining permanent residency for the foreign national. That is, is it a bona fide marriage?

The process for filing the I-130 Petition for Alien Relative and the I-485 Application to Register Permanent Residence is different in this situation than it is for a couple who marry outside the removal proceeding context. When the foreign national is in removal proceedings in Immigration Court . . .

Continue reading " The I-130 and I-485 Process for a Foreign National Who Marries a U.S. Citizen While in Removal Proceedings " »

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Family Based Immigration

Bookmark:

Customs and Border Protection (CBP) has announced that in early 2008, it received approximately one million I-94 Arrival-Departure cards that were misprinted—the cards were missing a digit. Keep in mind that an I-94 card should have eleven digits, comprised of nine digits, a space, and then two more digits.

It is not known exactly how many of the misprinted cards were actually issued to travelers but clearly many were because some people have reported problems in obtaining a Social Security number because the SSA will not issue a number to someone with what appears to it to be an incorrect number.

All of the misprinted I-94 cards have been recalled now and CBP has announced that anyone with a misprinted I-94 card can request that CBP issue a new card either through Deferred Inspection or at a Port of Entry.

Here is a helpful FAQs from CBP on the basics of the I-94.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Passports, Travel Documents

Bookmark:

Here is the June, 2008 Visa Bulletin. I would only point out that Section D notes expected retrogression in the Family 2A category for Mexico and that Section E notes that the Employment Third preference (EB3) category is close to the annual numerical limit.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration , Family Based Immigration

Bookmark:

On March 25, 2008, the 9th Circuit Court of Appeals held that a non-citizen who enters the U.S. by fraudulent means is statutorily ineligible for adjustment of status because that non-citizen has not been “admitted.” The case is Orozco v. Mukasey, 521 F.3d 1068(9th Cir. 2008). In this case, the non-citizen entered the U.S. through a checkpoint where he was inspected but he did so with someone else’s green card. He then married a U.S. citizen who filed an I-130 on his behalf and the I-130 was approved. Sometime thereafter he was put in removal proceedings where he tried to adjust his status to permanent residency because of his marriage and the approved I-130 and he asked for a 212(i) fraud waiver.

The Immigration Judge denied Orozco’s application for adjustment on the grounds that to adjust status, one must have been lawfully “admitted” to the U.S. and because of his fraudulent entry, Orozco was not “lawfully admitted”. The IJ held that the law defines "admission" as the "lawful entry of the alien into the U.S. after inspection and authorization".

The IJ ruled that the 212(i) fraud waiver, even if granted, wouldn’t change the lack of “admission”. The BIA affirmed and the federal court then upheld the IJ and the BIA.

The court’s ruling is binding law in the 9th Circuit only and, in fact, a federal court in the 2nd Circuit ruled completely differently (Emokah v. Mukasey).

On May 12, 2008, the 9th Circuit stayed its ruling for 60 days to allow the parties to file for rehearing so this ruling may not be the last word in the Circuit. Certainly if the case does hold up, one issue for future cases will be whether Orozco controls only where the non-citizen affirmatively enters the U.S. in a fraudulent manner--that is, knowing full well that his documents are counterfeit, as opposed to someone who presents himself at a point of entry with a fraudulent document but is waived through without actually showing it.

I’ll up the post when there is a decision on any re-hearing.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration , Family Based Immigration , Green Card

Bookmark:

On April 12, U.S. Customs and Border Protection began processing applications for the Global Entry pilot program. The program is intended to expedite processing for low-risk, frequent international travelers entering the United States.

The actual start of the program will be June 10 at JFK International in New York, George Bush Intercontinental Airport in Houston and Washington Dulles International Airport.

The Global Entry program will be available for U.S. citizens and lawful permanent residents who travel internationally on a frequent basis and who have no criminal record or customs or immigration offense.

Applications for enrollment in the Global Entry program are available through the Global On-Line Enrollment System (GOES) here Global Entry Program – Applications Are Available Now!

Basically, the process has three steps:

• An applicant must complete and submit an on-line application through GOES and pay a $100 fee. Pay.gov

• CBP officers will review the applicant’s information and conduct a background investigation.

• Finally, the applicant will undergo an interview with CBP officers at an Enrollment Center at JFK, Houston or Dulles Airports.

When the Global Entry passenger returns to the U.S. after international travel, he or she will be able to bypass the regular passport control line and go directly to the Global Entry kiosk. They will then insert their passport or U.S. permanent resident card into the document reader and be directed to electronically provide their fingerprints which will then be compared with biometric data already on file. Their digital photograph will also be taken.

The traveler will be prompted to answer several CBP declaration questions and then, once the process is successfully completed, he or she will get a transaction receipt which they will present to the CBP officer as they leave.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: News , Passports, Travel Documents

Bookmark:

The USCIS has published a Notice of Proposed Rulemaking that, if enacted, would increase the maximum amount of time a TN visa holder can remain in the United States before needing to renew his or her stay from one year to three years. The TN visa is a nonimmigrant visa that is available under NAFTA and it’s available to Canadian and Mexican citizens who have a minimum of a bachelor’s degree or who have appropriate professional credentials, who work in certain professions that are listed in the NAFTA regs (Appendix 1603.D.1 to Annex 1603)

Under the proposed rule, the TN visa holder would also be able to apply for extensions of stay in 3 year increments rather than the present one year increment.

The current rule that TN visa extensions can be granted indefinitely would remain the same.

This change would be a welcome, common sense change to the TN visa program. The three year stay would put the TN visa holder on par with H1B professionals who can be granted stays in 3 year increments (although H1B visa holders are generally limited to a maximum of 6 years in H1B status).

The rule change will make it administratively much easier for both U.S. employers and the TN visa holders, not to mention cheaper, too.

Here is the actual proposed rule. The USCIS will accept comments for 30 days before taking further action.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration

Bookmark:

The USCIS and the attorneys for certain class members in federal litigation in the Eastern District of Pennsylvania based in Philadelphia have announced a settlement agreement that provides for expedited processing of certain naturalization and adjustment of status applications for individuals at risk of loosing SSI benefits. The case is Kaplan v. Chertoff.

The settlement allows for a class member who has an application pending for more than six months to request expedited processing of his or her application.

The settlement also creates a way for the Social Security Administration to contact individuals who were terminated from the SSI program or who are at risk of termination from the SSI program while they were waiting for their delayed naturalization application.

Here is the announcement of the settlement.

Posted by James M. Tyler | Permalink | Email This Post

Posted In:

Bookmark:

On April 29, Rep. Zoe Lofgren (D-CA) introduced a bill (that has been co-sponsored by Bob Goodlatte (R-VA)), that would eliminate the arbitrary per-country caps for employment-based immigrants.

Currently, the number of employment-based immigrants that can come from any one country per year is capped at 7% and because of this, certain Chinese or Indian employment-based immigrant applicants face up to a decade or longer for a green card. So a top post-graduate at the top of his or her class at a school such as Johns Hopkins or MIT, for example, can sometimes wait much longer than a student from a less-populated country.

The cap is completely arbitrary and makes no sense at all.

The bill is a good example of a lawmaker offering a common sense solution to a problem that presently restricts the opportunity for U.S. employers to employ the talent they want to employ based on just that—talent alone and not country of origin.

I’ll post updates on the bill.

Posted by James M. Tyler | Permalink | Email This Post

Posted In: Employment Based Immigration

Bookmark: