Philadelphia Immigration Lawyer Blog

State Farm Insurance Company announced on June 26 that it will donate $1 million (and be the lead corporate sponsor) to the Ya Es Hora campaign to encourage more Latino U.S. permanent residents to become U.S. citizens. In addition to the cash donations, State Farm agents in Hispanic communities will provide naturalization applications and voter registration materials to their customers.

State Farm will be the first mainstream company to join in this very worthwhile effort--after other such companies declined, being fearful of controversy. According to studies, over 8 million Latino permanent residents are eligible to become U.S. citizens. In 2008, at least 9.3 million Latino voters will vote in the November, 2008 elections and 1.4 million of them were registered by the Ya Es Hora campaign. The current phase of the campaign hopes, with donations like State Farm's, to register another 2 to 3 million new Latino voters, numbers that could have a significant impact on crucial states like Colorado, New Mexico, Nevada and Florida.

Latino immigrants tend to vote in higher numbers than U.S. born Hispanics and the move by State Farm makes a lot of business sense for the insurance company. But State Farm's effort, whether it results in more Democratic or Republican voters is also just the right thing to do and the company should be applauded.

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

Posted In: Citizenship and Naturalization

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A recent decision by the AAO shows how difficult, but not impossible, it is to satisfy the “exceptional hardship” requirement for obtaining a waiver of the requirement that a J-1 nonimmigrant exchange visitor return to her home country for 2 years before being eligible for an immigrant visa. Exceptional hardship in waiver cases is often very difficult to establish because “exceptional” means just that: exceptional. It’s something far beyond just the usual anxiety, loneliness and financial hardship that would be suffered by any loving family members who might be forced to separated from each other.

In this AAO case, the J-1 visa holder was required by regulation to return to her home county, the Philippines, because under the law, all J-1 exchange visitors who come to U.S. to receive graduate medical education must return home for two years before they can apply for permanent residency, unless certain waivers apply. In this case, the only waiver that was available was the “exceptional hardship” waiver. This required her to show that her departure “would impose exceptional hardship upon the alien’s [U.S. citizen or permanent resident] spouse or child”.

The AAO started its analysis by asking whether exceptional hardship would be suffered by the applicant’s spouse or child if the circumstances forced them to travel abroad with the applicant to the applicant’s home country. Just because they chose to stay in the U.S. while the applicant was required to return home, would not show “exceptional hardship”.

Even then, even if exceptional hardship abroad were shown, the AAO said that it still must be shown that the U.S. citizen or permanent resident spouse or child would suffer “exceptional hardship” here in the U.S. if the applicant simply went home alone.

In this case, the applicant offered evidence of exceptional hardship to the California Service Center of the USCIS but her application was denied. Fortunately, the AAO ruled in her favor in her appeal.

It first held that her U.S. citizen children would suffer exceptional hardship if they went to the Philippines with their mother. One child has bronchial asthma which would have worsened in the Philippine environment, the children lived in the U.S their whole lives, did not speak Tagalog and would be subject to kidnappings as U.S. citizens. The applicant wisely submitted affidavits and much documentary evidence about conditions in the Philippines.

The AAO was also satisfied . . . . .

Continue reading " J-1 Visa and the Exceptional Hardship Waiver - a Favorable AAO decision " »

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

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

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On June 16, 2008, the U.S. Supreme Court issued an important immigration law in Dada v. Mukasey.

The case involved the issue of voluntary departure and the poor choice certain individuals must make between abiding by a voluntary departure order or filing a motion to reopen their removal case if they believe new facts justify a re-opening.

A person in removal proceedings who has asked for voluntary departure as an alternative form of relief from removal and who has been given the standard 30-60 days (under some circumstances, it can be up to 120 days) to voluntarily depart absolutely must depart the U.S. before the deadline or suffer serious consequences. If one fails to abide by their order of voluntary departure, the immigration court order automatically becomes an order of removal and there are civil and criminal penalties too.

On the other hand, one who has been granted voluntary departure might have a legitimate reason to ask that their case be re-opened if new facts develop or other evidence that could not be submitted earlier is now available. If they file the motion to re-open but leave the U.S. as required under their order of voluntary departure, the motion to re-open is abandoned. So, it’s a poor choice to have to make.

The Supreme Court recognized the tension between the motion to re-open provisions and the voluntary departure provisions and ruled that a person must be permitted to withdraw their request for voluntary departure as long as they do it before the deadline by which they were ordered to depart. In this way, the person can freely pursue their motion to re-open with suffering the consequences of failing to voluntarily depart.

However, it’s not a clear win for aliens because the Supreme Court specifically did NOT hold that the voluntary departure period was stayed while a motion to re-open is pending. So the dilemma really is still there—if one wants to file a motion to re-open without suffering the consequences of failing to voluntarily depart, one must give up voluntary departure and its benefits. If the motion to re-open is denied, the individual has lost out on voluntary departure and is subject to a removal order and its 10 year bar on re-entry.

The decision may actually have limited affect because the USCIS has proposed a regulation by which the filing of a motion to re-open would automatically terminate an order of voluntary departure, something the Court said “warrants respectful consideration.”

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

Posted In: News

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It’s not news that will affect a great many people but it’s interesting nonetheless. AILA has reported that Terrence West, the U.S. Consul in Sana'a, Yemen, has provided some guidance on dealing with the issue of khat use-immigrant visa ineligibility.

Khat is a controlled substance in the U.S. (and many other countries) and if it is used more than a single time, then the visa applicant is going to be considered a drug addict or drug abuser and consequently he or she will be determined to be ineligible for an immigrant visa under INA Section 212(a)(1)(A)(iv).

The statement issued by Mr. West is as follows:

The determination of ineligibility under INA Section 212(a)(1)(A)(iv) is made based upon the results of the panel physician's exam. Due to the prevalence of khat use in Yemen, and after consultation with the CDC and State Department Visa Office, we have instructed our panel physicians to inquire about khat use during the immigrant visa medical exam. If the applicant admits to more than a single use of khat, they are classed as a drug addict or abuser. Under current CDC guidelines, more than a single use of khat or any other controlled substance must result in a finding of drug addiction or abuse. A single use of a controlled substance is considered experimentation and is not an ineligibility.

The procedure for showing non-use of khat is the same as for any other drug. The applicant must submit to periodic examinations by a panel physician over three years. If during the three year period there is no indication of khat use, the applicant's medical condition will be downgraded to a finding of remission, a Class B condition. Once a finding of remission is made, we can proceed with visa issuance once all other documentary qualifications have been met, such as a new medical exam or police certificate.

What makes the clarification interesting is that khat chewing in Yemen is, according to some experts, a way of life and a crucial part of Yemeni celebrations such as marriages. In fact, according to one observer, not using khat in Yemen results in social isolation. Its use is apparently common among men, women and even minors.

This isn’t a criticism of the consul’s policy which makes sense given the long term effects of khat use (especially when it’s use starts at an early age); it’s just an observation. Given its widespread us in Yemen, it must be very difficult to get an immigrant visa out of Yemen.

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

Posted In: News

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On June 11, 2008, the USCIS announced that starting June 16, 2008, it will accept I-907 Premium Processing requests for I-140 applications (Immigrant Petition for Alien Worker) that are filed on behalf of alien workers who are near the end of their sixth year in H-1B nonimmigrant status.

Requests for premium processing will be accepted for I-140 petitions that are filed on behalf of those who are 1) currently in an H-1B nonimmigrant status; 2) whose sixth year in H-1B status will end within 60 days; 3) who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of AC21* and 4) who are ineligible to extend their H-1B status under section 106(a) of AC21**.

*Section 104(c) of AC21 permits someone in H-1B status to extend their stay in increments of up to three years if they are the beneficiary of an approved Form I-140 and if an immigrant visa is not immediately available.

**Section 106(a) of AC21 permits someone in H-1B status to extend their stay in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

This change will really help those who otherwise would not be able to maintain status while waiting for normal processing times for their I-140 and where because an immigrant visa is not immediately available, they would not be able to file their I-485 application to adjust to permanent residency status when their I-140 is filed.

With premium processing, the USCIS will make a decision on the I-140 within 15 calendar-days from the time of filing the I-907 request for such premium processing.

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

Posted In: Employment Based Immigration , H-1B , News

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Despite the fact that N-400 naturalization applications sometimes involve lengthy and inexplicable delays, resulting in great frustration and concern for the applicant, sometimes they do go smoothly.

I attended a naturalization interview today with a client. We filed his N-400 in late October, 2007, biometrics were taken in February, 2008, the interview was today, June 10, 2008 and he is scheduled for his swearing in ceremony on July 2, 2008.

It’s nice when an application is actually approved without any delay.

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

Posted In: Citizenship and Naturalization

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On June 9, 2008, DHS Secretary Michael Chertoff announced that EAD authorization periods for those with pending adjustment of status applications will soon be granted for two year periods rather than the current one year period. He announced the change in a “State of Immigration” address he gave with Commerce Secretary Gutierrez in Washington.

The change is a very welcome one. By doubling the validity period for work authorization, it will mean less expense (the filing fee for the I-765 alone is $340.00) and hassle for those with pending adjustment applications. The change is supposed to start later this month.

Here is the quote from Secretary Chertoff’s remarks:

“. . . I'm also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residency or in colloquial phrase, the green card.

Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we'll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year.

This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year. It's going to cut the paperwork there. . .”

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

Posted In: Employment Based Immigration , News

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On June 5, 2008, the USCIS announced that it has centralized the initial processing of all Form N-400 (Application for Naturalization) at its National Benefits Center in Missouri.

However, this change will not change where an applicant files his or her N-400 application.

Applicants will continue to file their N-400 along with all supporting documents and fees with the USCIS Service Center having jurisdiction over their place of residence

Also, applicants will also continue to report to a local field office for the naturalization interview and naturalization test.

So, don’t send an N-400 to the National Benefits Center because if you do, the USCIS will simply return it to you.

Residents of Pennsylvania, New Jersey and Delaware will continue to send N-400 applications to the Vermont Service Center.

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

Posted In: Citizenship and Naturalization

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On June 5, 2008 the USCIS announced a clarification on I-751 transfer notices that may have led certain conditional residents to think that their I-751 (the Petition that’s filed in order to remove conditions on residence) has been approved when, in fact, the petition has only been transferred and not yet approved.

The problem started last month when the USCIS announced that it would soon require all Forms I-751 to be filed at only the California or Vermont Service Centers (depending on the residency of the petitioner). At the same time, it was also announced that until that filing change was final, the USCIS itself would transfer any I-751 petition that was still filed with either the Nebraska and Texas Service Centers to either California and Vermont for a decision.

When such a transfer happened, the USCIS has been sending out a notice of the transfer with the following language: “CRI89 approved removal of conditions (I89)”.

That language has understandably confused people who think their I-751 has been approved. But all the transfer notice really means is that the biometric portion of the case has been successfully transferred. It does not mean that the petition itself was approved.

Very confusing.

So the USCIS is going to remove the confusing language from the transfer notices. Any I-751 applicant should not consider that his or her I-751 application has been approved until he or she receives a specific I-751 approval notice from the Vermont Service Center or California Service Center (again, depending on the residency of the applicant).

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

Posted In: Family Based Immigration

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On June 2, 2008, the Department of Labor announced that it is now auditing all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy. DOL says that it is doing so because of information it says it received that in at least some cases the Fragomen firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring U.S. workers who allegedly were qualified.

During this auditing process, DOL will decide which, if any, applications should be denied or placed into department-supervised recruitment.

The permanent labor certification process allows employers to sponsor aliens for permanent residency but only where it been established through a strict, detailed recruitment process that there is no qualified, willing and available U.S. worker to fill the position. The employer’s attorney is not supposed to be involved in the recruitment process (unless he or she is typically involved in the employer’s hiring).

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

Posted In: Employment Based Immigration

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On May 31, 2008, opponents of the DHS decision to extend Optional Practical Training (OPT) to 29 months (under certain limited circumstances) have challenged that decision in U.S. District Court in Newark, New Jersey. The lawsuit was filed by the so-called Immigration Reform Law Institute and it was joined by the Programmers Guild and some other groups such as the American Engineering Association and Brightfuturejobs.com.

It’s questionable whether these parties even have standing to bring the lawsuit. Assuming that they have standing, it’s clear that the suit has no merit whatsoever.

DHS, which announced the new rule on April 4, 2008, wisely extended the period of OPT from 12 to 29 months for certain qualified F-1 non-immigrant students who have a degree in science, technology, engineering, or mathematics (STEM) and who are employed by businesses enrolled in the E-Verify program.

The whole purpose of the rule change is to do what’s necessary to attract and retain highly skilled foreign workers that will help U.S. companies stay competitive in today’s world economy. If the U.S. doesn't welcome these highly skilled workers, other countries certainly will.

The new rule also addressed the situation where an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. Finally, the new rule will also allow students to apply for OPT within 60 days of graduation.

I’ll post updates on the progress of the suit which I am confident will ultimately be dismissed.

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

Posted In: Employment Based Immigration , H-1B

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