Jacksonville Immigration Attorney Blog

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Not too many people are aware, but under probate law in connection with wills and estates, the executor of the will assigned by the deceased person must be a U.S. citizen in many states in the U.S.

A new Memo dated October 3, 2011 issued by the Probate Court in Alabama, states that now proof of citizenship is required as well as a copy of the driver's license. This requirement is same as the requirement in many other states.

Just a small reminder of one of the many benefits of becoming a U.S. citizen.

CNN has reported that over a span of 7 days, ICE has arrested 2,900 immigrants who had criminal convictions. ICE arrested 2,900 people from all over the 50 states. The Obama Administration has consistently upheld its policy against criminal aliens, and this is one example of their policy being placed in action. Of those 2,900 people, more than 1,200 people had multiple convictions. Also, 1,600 of those people had felony convictions ranging from manslaughter to sexual crimes against minors. A few were even gang members or convicted sex offenders.

ICE has estimated that there remain at large over 1 million convicted immigrants in the U.S. Most of the people arrested, about 2,600 of them, were men.

I know from the calls I am receiving in my office that enforcement of criminal aliens is definitely on the rise, because at least 50 percent of the calls I have been receiving lately are calls from family members seeking assistance in getting their loved one out of immigration custody. Many of the detained aliens have had some previous criminal conviction(s) in their past.

The Board of Immigration Appeals recently issued a favorable case regarding Iraqi Christians. Although the Immigration Judge did not allow the applicant to reopen her deportation order to apply for asylum from Iraq, the Board of Immigration Appeals (BIA) reversed the Judge's decision and allowed the applicant's deportation order to be reopened.

This is a helpful case, because the motion to reopen was NOT timely filed within 90 or 180 days. In fact, the applicant waited 3 years before filing this Motion to Reopen. The Judge who denied the Motion to Reopen is with the Immigration Court in Detroit, MI. Based on this decision, now the applicant will have the opportunity to apply for asylum and withholding of removal.

The Board of Immigration Appeals reopened the applicant's case because they stated that based on the country conditions information provided by the applicant, the country conditions for Christians in Iraqi have worsened in the years of 2008 and 2009. The BIA held that the country conditions have worsened to such an extent since the applicant's prior deportation hearing that the deportation proceedings should be reopened to allow the applicant to apply for asylum and withholding of removal. The matter was remanded, i.e. sent back, to the Immigration Judge for his consideration of the worsening situation in Iraq for Christians and for entry of a new decision.

This decision is unpublished and a copy of the decision was emailed to our office for our own information from the applicant's attorney.

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.

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.