Integrity Legal

Posts Tagged ‘AILA’

21st June 2011

It recently came to this blogger’s attention that the highly informative website of the American Immigration Lawyers Association has noted the Uniting American Families Act (UAFA) and the Reuniting Families Act (RFA) in a recent posting. Perhaps it is best to quote directly from the official website of the American Immigration Lawyers Association (AILA):

Uniting American Families Act of 2011 (H.R. 1537)
Introduced by Rep. Nadler (D-NY) on 4/14/11
Summary: Includes a “permanent partner” within the scope of INA. Defines a “permanent partner” as an individual 18 or older who: (1) is in a committed, intimate relationship with another individual 18 or older in which both individuals intend a lifelong commitment; (2) is financially interdependent with the other individual; (3) is not married to, or in a permanent partnership with, anyone other than the individual; (4) is unable to contract with the other individual a marriage cognizable under this Act; and (5) is not a first, second, or third degree blood relation of the other individual. Defines: (1) “permanent partnership” as the relationship existing between two permanent partners, and (2) “alien permanent partner” as the individual in a permanent partnership who is being sponsored for a visa…

Reuniting Families Act (H.R. 1796)
Introduced by Rep. Honda (D-CA) on 5/6/11
Summary: Amends the INA to establish the fiscal year worldwide level of employment-based immigrants at 140,000 plus: (1) the previous year’s unused visas, and (2) the number of unused visas from FY1992-FY2011. Establishes the fiscal year worldwide level of family-sponsored immigrants at 480,000 plus: (1) the previous year’s unused visas, and (2) the number of unused visas from FY1992-FY2011.

Revises the definition of “immediate relative” to: (1) mean a child, spouse, or parent of a U.S. citizen or lawful permanent resident (and for each family member of a citizen or resident, such individual’s accompanying spouse or child), except that in the case of parents such citizens shall be at least 21 years old; (2) permit a widow or widower of a U.S. citizen or resident to seek permanent resident status if married at least two years at the time of the citizen’s or resident’s death or, if married less than two years, by showing through a preponderance of the evidence that the marriage was entered into in good faith and not solely to obtain an immigration benefit; and (3) include an alien who was the child or parent of a U.S. citizen or resident at the time of the citizen’s or resident’s death if the alien files a petition within two years after such date or prior to reaching 21 years old…

This blogger encourages readers to click upon the relevant hyperlinks noted above to read further into the details of all of the proposed pieces of legislation noted in the aforementioned quotation. Frequent readers of this blog may recall the initial introduction of these bills by Representative Jerrold Nadler and Representative Mike Honda, respectively. It could easily be inferred that many in the LGBT community and same-sex bi-national couples from around the globe are anxiously awaiting positive news on any of these legislative proposals.

Readers are reminded that Representative Nadler is the legislator who also proposed the Respect for Marriage Act which would provide federal recognition of the State licensure of same sex marriage. It should be noted that several sovereign American States currently legalize and/or solemnize such marital unions and jurisdictions such as the Commonwealth of Massachusetts and the State of California have seen cases in the federal judicial branch which may result in an end to the current discrimination felt by many couples as a result of the so-called “Defense of Marriage Act” (DOMA).

This news comes upon the heels of interesting possible political developments in Texas which may result in State legislation pertaining to TSA activities in airports. To quote directly from the official website of 1200 WOAI News Radio out of San Antonio, Texas:

Texas lawmakers will reconsider a bill that would criminalize ‘enhanced pat downs’ by Transportation Security Administration agents at the state’s airports, after Gov. Rick Perry placed the item on the agenda for the current special session of the legislature following intense pressure from conservatives and tea party groups, 1200 WOAI news has learned. “I am grateful that the governor heard the calls of the people demanding that lawmakers stand up for the liberties of Texans,” Wesley Strackbein, a conservative activist and founder of’ TSA Tyranny.com’ told 1200 WOAI news.  Strackbein Saturday traveled to New Orleans to confront Perry at a book signing event and demand that the item be placed on the legislative  agenda…

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to learn more.

TSA‘s (Transportation Security Administration) usage of so-called “enhanced patdowns” upon children and physically/mentally challenged individuals, not to mention the public-at-large, has apparently caused intense political pressure at the grassroots level calling for restriction of these activities. It would appear as though tangible results of such pressures could be forthcoming, but until such time as a bill has actually been enacted it is difficult to say if, or when, offensive policies and procedures will actually change.

For related information please see: Full Faith and Credit Clause.

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3rd June 2011

It recently came to this blogger’s attention that the United States Embassy in Kabul is taking measures to re-institute a policy which would allow for visa interviews to take place on the premises of the Post in Afghanistan. Readers are reminded that such interviews have not been conducted at that location in approximately 20 years. To quote directly from a Department of State announcement as posted upon the official website of the American Immigration Lawyers Association (AILA):

As of June 1, for the first time in 20 years, immigrant visa applicants will again have scheduled As of June 1, for the first time in 20 years, immigrant visa applicants will again have scheduled interviews in Kabul. U.S. Embassy Islamabad was previously the closest U.S. Embassy or Consulate where immigrant visa applicants could be interviewed.

Applicants for petition-based visas, which are mostly temporary work visas, can also now interview in Kabul. For the last two years, applicants for visitor, student and most other temporary visas could apply in Kabul, but not applicants for visas that if approved allow someone to move to the U.S. or to work there. Applicants for non-immigrant petition-based visas like temporary workers (H) can schedule their own appointments using the existing online system on the Embassy’s web site. All of these categories of visas involve a multi-step process that usually starts with a petition that a U.S. relative or employer files with immigration authorities. It is important to note that prior to the interview, the National Visa Center conducts almost all pre-interview processing of petitions that the immigration service approves in the United States. The National Visa Center will also schedule appointments when approved immigrant visa petitions become current.

All of these categories of visas involve a multi-step process that usually starts with a petition that a U.S. relative or employer files with immigration authorities. It is important to note that prior to the interview, the National Visa Center conducts almost all pre-interview processing of petitions that the immigration service approves in the United States. The National Visa Center will also schedule appointments when approved immigrant visa petitions become current…

It should be noted that those seeking immigrant visas to the United States of America must generally first receive an approved immigration petition from the United States Citizenship and Immigration Service (USCIS). Upon receiving such approval a case file will usually be sent to the National Visa Center which acts as a sort of clearinghouse for visa application files so as to insure that the case file arrives at the US Mission with appropriate jurisdiction. Prospective visa seekers should note that estimated processing times for USCIS adjudication do not take into account Consular Processing at an appropriate US Embassy or US Consulate abroad.

For related information please see: American visa.

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25th December 2010

This author recently came across an interesting piece of information on the official website of the American Immigration Lawyers Association (AILA). Apparently, the United States legislature has enacted legislation that would simplify the adoption process for Americans adopting a child, or children, outside of the United States of America. To quote directly from a recent AILA posting:

On 11/30/10, President Obama signed into law the International Adoption Simplification Act (P.L. 111-287).

The law amends the INA to include in the definition of “child,” and thus in the exemption from required admissions vaccination documentation, certain children who have been adopted in a foreign country that is a signatory to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) or who are emigrating from such a country for U.S. adoption.

It includes in such definition and exemption a child who is under the age of 18 at the time an immediate relative status petition is filed on his or her behalf, has been adopted abroad or is coming for U.S. adoption, and is the natural sibling of: (1) an adopted child from a Hague Convention signatory country; (2) a child adopted under the age of 16 who has lived with the adoptive parents for at least two years, or a child who has been abused; or (3) an orphan who was under the age of 16 at the time an immediate relative status petition was filed on his or her behalf.

The bill was passed in the Senate by unanimous consent on 7/21/10, and passed by the House of Representatives by a voice vote on 11/15/10.

It should be noted that not all countries are signatories to the Hague Convention noted above. However, for the USA, which has joined the Hague Convention, the simplification of the adoption process could result in families being reunited in the USA much more quickly compared to the process in the recent past.

In many ways, the foreign adoption process is somewhat similar to the process of obtaining American immigration benefits for a child purusuant to the provisions of the Child Citizenship Act of 2000. The CCA’s provisions can grant United States Citizenship by operation of law to the natural born child or children of an American Citizen. That said, the process for obtaining such benefits is often very much the same as the process utilized by those Americans wishing to bring a step-child of foreign nationality to the USA. The major difference between these two processes occurs at the United States Port of Entry where children of American Citizens born abroad become US Citizens by operation of law upon admission to the USA on an Immigrant visa in the company of the American parent.

Fore related information please see: Child Citizenship Act.

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27th October 2010

It recently came to this author’s attention that the Department of Homeland Security’s United States Citizenship and Immigration Service (USCIS) has promulgated a new Naturalization Certificate. The new document has enhanced security features and is updated in order to comport with current law. To quote directly from a recent press release distributed by the American Immigration Lawyers Association (AILA):

U.S. Citizenship and Immigration Services (USCIS) today announced it has begun issuing a redesigned, more secure Certificate of Naturalization (Form N-550) as part of its ongoing efforts to enhance the integrity of the immigration system. The agency anticipates that over 600,000 new citizens will receive the enhanced certificate over the next year.

It really can seem rather astounding that the United States grants citizenship to so many people each year as there are many countries throughout the world that do not take in immigrants at nearly the rate of the United States. Furthermore, of the countries that admit immigrants it would seem that the United States is more eager to grant citizenship to those who have obeyed the immigration laws and sought naturalization through the proper channels.

The aforementioned press release went on to note some frequently asked questions posed by those interested in the U.S. Naturalization process:

Q1. What is a Certificate of Naturalization (Form N-550)?
A1. The Certificate of Naturalization serves as evidence of your citizenship. You receive it after taking the Oath of Allegiance to the United States. Citizenship qualifies you to vote and travel with a U.S. passport, among other rights. In many instances, a Certificate of Naturalization is accepted as a valid form of identification.


Q2. Why did USCIS redesign the naturalization certificate?
A2. The previous Certificates of Naturalization featured hard-copy photos of the candidates. The redesigned certificate features the naturalization candidate’s digitized photo and signature embedded into the base document. Eliminating the requirement to affix the hard-copy photo and hand-stamp the USCIS director’s signature cuts cost in man-hours and improves security.


Q3. What’s different about the new certificates?
A3. The naturalization candidate’s digitized photo and signature are embedded in the security-enhanced certificate. Its background features a color-shifting ink pattern that is difficult to recreate. Additionally, USCIS will use a more secure printing process, making it more tamper-proof.


Q4. When will USCIS issue the security-enhanced naturalization certificates?
A4. USCIS will begin using redesigned certificates at all offices beginning today. USCIS offices in Atlanta, Denver and Baltimore will begin to utilize the automated production process this week, including digitizing photos and signatures on all certificates. USCIS will deploy the automated production system agency-wide by the end of the calendar year.


Q5. Following the agency-wide transition to the new document, will all new citizens receive redesigned naturalization certificates with digitized photos?
A5. While all new citizens will receive the redesigned, security-enhanced certificate, certain, limited categories of naturalization candidates, including overseas military and homebound candidates, will receive documents with hard-copy photos affixed to their certificates.


Q6. I’ve already obtained a Certificate of Naturalization. Will I have to apply for the redesigned security-enhanced version?
A6. No. All previously issued Certificates of Naturalization will remain valid.

Q7. How does the issuance of the redesigned naturalization certificate impact applicants?
A7. The issuance of the redesigned Certificate of Naturalization will not impact Application for Naturalization (N-400) processing times. USCIS Application Support Centers (ASCs) will still require applicants to submit their fingerprints and two hard-copy photos. The ASCs will also capture a digital photograph and digital signature for each N-400 applicant.


Q8. If ASCs will capture digital photos of N-400 applicants, why must applicants still provide hard-copy photos?
A8. The hard-copy photos will be required as a back-up in case of unforeseen issues, allowing them to continue their naturalization process without delay.


Q9. Will USCIS update any of its other certificates?
A9. Yes. USCIS intends to digitize its other citizenship-related certificates, but no completion dates have been set.


Q10. Will the wording of the naturalization certificate change?
A10. Yes. USCIS has revised the wording to better reflect the current provisions of the Immigration and Nationality Act. In particular, obsolete language stating that the candidate resides in the United States and “intends to reside in the United States when so required by the Naturalization laws of the United States” has been removed. These changes affect the form of the certificate only and do not alter any legal requirements for naturalization or USCIS application processing.

This author found it interesting to note that the FAQ’s quoted above mentioned that other citizenship documentation may be updated soon. It remains to be seen whether or not the Certificate of Citizenship, which signifies US Citizenship, but for those who are Citizens not by naturalization, but through either some extraneous set of circumstances of by operation of law; will be enhanced to safeguard against fraud. Certificates of Citizenship are likely to be more common in the future particularly since the promulgation of the Child Citizenship Act, but it remains to be seen how the Certificate of Citizenship might be upgraded.

Naturalization to United States Citizenship is a serious undertaking and those interested in becoming United States Citizens should research the process thoroughly in an effort to understand the requirements and ramifications of United States Citizenship. Hopefully, this new Naturalization Certificate will result in increased security in the form of more tamper resistant documentation.

Fore related information please see: USCIS processing time, Child Citizenship Act, or Legal.

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24th September 2010

In previous posts on this blog, this author has discussed proposed fee increases of the United States Citizenship and Immigration Service (USCIS). In a recent announcement from USCIS, this matter again came to this author’s attention as USCIS announced a final rule on the issue. To quote directly from the actual announcement as distributed by the American Immigration Lawyers Association (AILA):

U.S. Citizenship and Immigration Services (USCIS) today announced a final rule adjusting fees for immigration applications and petitions. The final rule follows a period of public comment on a proposed rule, which USCIS published in the Federal Register on June 11, 2010. After encouraging stakeholders to share their input, USCIS considered all 225 comments received. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization application. The final rule will be published in the Federal Register tomorrow,September 24, and the adjusted fees will go into effect on November 23, 2010.

“USCIS is grateful for the valuable public input that we received as we prepared the final fee rule,” said USCIS Director Alejandro Mayorkas. “We remain mindful of the effect of fee increases on the communities we serve, and we will continue to work to enhance the services we provide.”

The final fee rule establishes three new fees, including a fee for regional center designations under the Immigrant Investor (EB-5) Pilot Program, a fee for individuals seeking civil surgeon designation, and a fee to recover USCIS costs to process immigrant visas granted by the Department of State. Additionally, the final rule reduces and eliminates several fees, including some for servicemembers and certain veterans of the U.S. armed forces who are seeking citizenship-related benefits. The final rule also expands the availability of fee waivers to additional categories.

USCIS is a primarily fee-based organization, with about 90 percent of its budget coming from fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine the funding levels necessary to administer the nation’s immigration laws, process immigration benefit requests and provide the infrastructure needed to support those activities. The final fee rule announced today concludes a comprehensive review begun in 2009.

USCIS’s fee revenue in fiscal years 2008 and 2009 was much lower than projected, and fee revenue in fiscal year 2010 remains low. While USCIS received appropriations from Congress and made budget cuts of approximately $160 million, this has not bridged the remaining gap between costs and anticipated revenue. A fee adjustment, as detailed in the final rule announced today, is necessary to ensure USCIS recovers the costs of its operations while also meeting the application processing goals identified in the 2007 fee rule.

Those with foreign fiances may take note of the fact that within this same announcement it was noted that the petition fees for the fiance visa will be reduced from 455 United States dollars to 340 United States dollars. On the whole, there are some who may not particularly welcome this announcement, but it would appear that the costs associated with providing Immigration services have reached the point that a fee adjustment is in order.

It should be noted that the fees noted above may not be the only costs that arise during the processing of a United States visa. This is due to the fact that the US visa process is somewhat bifurcated as USCIS is tasked with adjudicating the initial immigration petition while a US Embassy or US Consulate with appropriate jurisdiction is responsible for processing visa applications for travel documents sought outside of the United States of America. Recently, the US Department of State announced an increase in fees associated with adjudication of K1 visa applications abroad. That said, other fees were reduced. These fee adjustments seem to correlate to the underlying costs and fees associated with the adjudication of these applications.

For related information please see: K1 Visa Thailand.

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20th September 2010

The United States Customs and Border Protection Service (USCBP) is tasked with maintaining the security of America’s ports and overseeing the execution of customs regulations. In previous posts on this blog, it has been noted that there is a great deal of economic opportunity in the Asia-Pacific region. Some Americans are unfamiliar with a body known colloquially as APEC (Asia Pacific Economic Cooperation). This body has become an increasingly important platform for discussion of various subjects pertaining to inter-jurisdictional matters arising in the Asia-Pacific region. To quote the APEC website directly:

Asia-Pacific Economic Cooperation, or APEC, is the premier forum for facilitating economic growth, cooperation, trade and investment in the Asia-Pacific region .

APEC is the only inter governmental grouping in the world operating on the basis of non-binding commitments, open dialogue and equal respect for the views of all participants. Unlike the WTO or other multilateral trade bodies, APEC has no treaty obligations required of its participants. Decisions made within APEC are reached by consensus and commitments are undertaken on a voluntary basis.

This consensus driven initiative has proven effective in facilitating international trade, cooperation, and dialogue. In a recent press release it was announced that the USCBP will likely be taking on a more hand-on role within the APEC framework. To quote the press release as distributed by the American Immigration Lawyers Association (AILA):

U.S. Customs and Border Protection announced today that it will host the Subcommittee on Customs Procedures as part of the 2011 Asia-Pacific Economic Cooperation (APEC) meetings that will be chaired by the United States. The Sub-committee on Customs Procedures coordinates CBP’s efforts in customs, immigration and counter-terrorism with partner agencies throughout APEC member countries. The yearlong chairmanship will be handed over to CBP from the Japan Customs and Tariff Bureau today.

“CBP is proud to be hosting the distinguished members of the Sub-committee on Customs procedures for the 2011 APEC meetings,” said Commissioner Alan Bersin. “It is of vital importance to the security of our global economy for the members to coordinate and share
customs best practices.”

The subcommittee is a working level group within APEC. It brings Customs administrations of APEC Member Economies together to simplify and harmonize customs procedures and to ensure trade moves efficiently and safely across the Asia-Pacific region. APEC is the premier forum for facilitating economic growth, cooperation, trade and investment in the Asia-Pacific region. The APEC region is home to more than 2.7 billion
people and represents approximately 60 percent of the world GDP and 44 percent of world trade.

Japan officially turns over the Chair of APEC to President Barack Obama at the November 13-14, 2010 Leader’s Meeting in Yokohama, Japan.

This is a very interesting development from an economic perspective as it would appear that the United States is taking a keener interest in Asia-Pacific affairs. This may be due to the recent downturn in the US economy as well as the rise of The Peoples’ Republic of China as a major player in global economic relations. Whatever the reason for this increasing interest in the region, this author welcomes further streamlining of Customs procedures in an effort to stimulate new transnational trade and facilitate preexisting trading relationships in an effort to increase the volume trade between the United States and the members of APEC.

Hopefully, through voluntary cooperation trade can be increased and the security of the USA and the other APEC member nations will be increased. To further quote the aforementioned press release distributed by AILA:

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

Hopefully, this new multilateral initiative will be beneficial for all concerned as US officials and Customs authorities from other participating nations can pool some resources in an effort to combat international crime and facilitate the execution of relevant immigration laws.

Many Americans and foreign nationals are under the mistaken impression that Customs and Border Protection simply “rubber stamps” entrants to the United states who are either from countries participating in the Visa Waiver Program or have a US Tourist Visa. Nothing could be further from the truth as even those entering the USA with a valid visa could be turned away or placed in Expedited removal proceedings depending upon their travel history. Those interested in traveling to the USA from a country abroad may find the assistance of an American attorney beneficial as such an individual may be able to provide insight into the Immigration process and streamline the processing of visa applications and petitions.

For related information please see: US Visa China.

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8th June 2010

A frequent topic on this blog is same sex marriage and the intersection of that issue with US Immigration law. Currently, the Defense of Marriage Act (DOMA) effectively prevents Federal recognition of Same Sex Marriages when adjudicating US Immigration petitions. Therefore, different sex couples who are validly married in a jurisdiction in the United States can petition for Immigration benefits if one of the partners is foreign national. This is not the case for same sex couples as same sex partners are currently barred from obtaining US Immigration benefits based upon a bona fide same sex marriage. This issue is being widely discussed in US Immigration circles. An example of this discussion can be found in the most recent edition of The Voice, a publication promulgated by the American Immigration Lawyers Association (AILA). The following is an excerpt from a recent article discussing LGBT immigration issues:

“At present, gay and lesbian marriages are recognized in 10 countries. The Netherlands, Belgium, Spain, Canada, South Africa, Norway, and Sweden recognize marriage equality uniformly throughout their territories.5 Same-sex marriages
also are recognized in some parts of Argentina and Mexico.6 However, DOMA closes the door to same-sex marriage recognition under any federal law, including the Immigration and Nationality Act (INA). So for those couples who have united legally in one of the many countries stated above, DOMA would keep federal immigration laws from legally recognizing those unions upon their immigration to the United States.

Many courts have found that the language of DOMA is clear and unambiguous. But can DOMA be struck down? In addition to suits filed in Massachusetts,8 at least one other high-profile case in California, Perry v. Schwarzenegger, D.Ct.N.D.Cal. case 3:2009cv02292 (filed May 22, 2009), is currently challenging the constitutionality of discrimination against same-sex marriages more generally. If such a case were successful, it might lead courts to strike down DOMA and all anti-gay state marriage amendments, presumably resulting in the clear recognition of all bona fide same sex marriages in the United States.”

Although there are many legal obstacles in the path of equal Immigration rights for same sex couples, there may be a light at the end of the tunnel as a repeal of DOMA would create an opening that could be exploited by advocates for same ex immigration. To quote the aforementioned article:

“In a world without DOMA, U.S. immigration law would clearly recognize the same-sex marriage of a couple residing in a U.S. state that recognizes the marriage. It is also highly likely that the marriages would be recognized for residents of other states with no laws prohibiting same-sex marriage.”

Although repeal of DOMA may not be a perfect legal solution from an Immigration standpoint, a repeal of DOMA in conjunction with the adoption of a statute such as the Uniting American Families Act (UAFA) would likely be an optimal solution to the current legal impasse.

For more information please see: Same Sex Visa.

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9th May 2010

In a recent statement, the Director of the Terrorist Screening Center (TSC), Timothy J. Healy, discussed the overall methodology of the Center and how it has had a positive impact upon anti-terrorism initiatives of both the United States and the global community. The following in an excerpt from the statement, which has been distributed by AILA:

Established in 2003, the TSC is a multi-agency center that connects the law enforcement communities with the Intelligence Community by consolidating information about known and suspected terrorists into a single Terrorist Screening Database, which is commonly referred to as the “Terrorist Watchlist.” The TSC facilitates terrorist screening operations, helps coordinate the law enforcement responses to terrorist encounters developed during the screening process, and captures intelligence information resulting from screening.


Of paramount significance is the TSC’s success in making this critical information accessible to the people who need it most – the law enforcement officers who patrol our streets, the Customs and Border Protection Officers who protect our borders, and our other domestic or foreign partners who conduct terrorist screening every day. In the six years since we began operations, the Terrorist Watchlist has become the world’s most comprehensive and widely shared database of terrorist identities. The current terrorist watchlisting and screening enterprise is an excellent example of interagency information sharing whose success is due to the superb collaborative efforts between the TSC, the FBI, the Department of Homeland Security (DHS), the Department of State, the Department of Defense, the National Counterterrorism Center (NCTC) and other members of the Intelligence Community.

It is interesting to note the international character of this initiative. In a previous posting on this blog the author noted that Thai Immigration authorities have begun linking their database to international and American information databases in order to more accurately investigate individuals who may be a threat to security.

On a related note, it should be mentioned that due to the new synergy that has arisen as a result of international cross referencing of criminal record databases those Americans living or staying in a foreign country could have significant problems if they have an American warrant as having a US Criminal warrant could result is passport confiscation by a Consular Officer at an American Citizen Services section of a US Consulate overseas. This usually happens when Americans with such warrants need to obtain a new passport or add pages to their current passport. In order to forestall these types of problems, it is advisable to speak to an American attorney in order to assess one’s options with regard to dealing with the matter in the legally prescribed manner.

For further information about Thai Immigration, please see: Thailand Visa.

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8th March 2010

Recently the Department of Homeland Security issued a notice that the rules regarding attorney representation would be amended in order to fall in line with the relevant Department of Justice regulations. To quote a the summary in the Federal Register which is displayed on the American Immigration Lawyers Association (AILA) website:

“The Department of Homeland Security (DHS) is amending its regulations governing representation and appearances by, and professional conduct of, practitioners in immigration practice before its components to: Conform the grounds of discipline and procedures regulations with those promulgated by the Department of Justice (DOJ); clarify who is authorized to represent applicants and petitioners in cases before DHS; remove duplicative rules, procedures, and authority; improve the clarity and uniformity of the existing regulations; make technical and procedural changes; and conform terminology. This rule enhances the integrity of the immigration adjudication process by updating and clarifying the regulation of professional conduct of immigration practitioners who practice before DHS.”

As has been discussed on this blog before, the issue of attorney representation is of great importance due to the fact that there are many disreputable organizations calling themselves such things as “visa company,” “visa agency,” or, “visa consultant” and other unscrupulous operators who go so far as to claim attorney credentials when they are, in fact, unlicensed to practice law in the United States and therefore unable to practice US Immigration law. To quote the Federal Register again:

“Definition of attorney. This rule amends the definition of “attorney” at 8 CFR 1.1(f), to conform with DOJ’s definition at 8 CFR 1001.1(f), by adding the requirement that an attorney must be eligible to practice law in the bar of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, in addition to the other requirements for attorneys set forth in that regulation. State bar rules uniformly require licensed attorneys to maintain an active status in order to practice law; however, there has been some confusion as to the applicability of that requirement in determining eligibility to appear as a representative before DHS.”

It is interesting that this addition was made as it imposes an more stringent burden upon practitioners as anyone practicing before the Department of Homeland Security (DHS) or its agencies, like the United States Citizenship and Immigration Service (USCIS), the United States Customs and Border Protection Service (CBP), and the Immigration and Customs Enforcement Service (ICE) must be eligible to practice in virtually every American jurisdiction. It should be noted that eligibility is the only new requirement added as DHS does not require that practitioners be licensed to practice in all US jurisdictions.

It should also be pointed out that attorneys are not the only individuals who can represent clients before DHS. In fact, if an individual is accredited by the Board of Immigration Appeals, then they may represent individuals in certain DHS proceedings. However, such agents are usually non-profit organizations as non-attorney representatives are NOT entitled to charge anything except nominal fees.

For related information please see US Lawyer Thailand or US Visa Thailand.


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12th February 2010

For those who have gone through the United States Immigration process or those who are thinking of doing so, the acronym USCIS will become familiar if it is not already. USCIS stands for the United States Citizenship and Immigration Service. This organization adjudicates many Immigrant visa petitions before they are sent to the the Department of State. In many ways USCIS carries out their duties in an effective and efficient manner. However, there are some situations in which some individuals feel that USCIS oversteps their authority.

In a recent blog posting, the past president of the American Immigration Lawyers Association wrote about the issues surrounding USCIS and dereliction of what some perceive as the proper interpretation of Federal law:

“[T]wice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA [Administrative Procedure Act].”

The posting went into further detail below:

“USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. Now, however, with the two newest “Neufeld Memos” the USCIS has simply gone too far…The Neufeld memo on the EB-5 program, essentially makes that job creation program unworkable, and the Neufeld Memo on the H-1B program, literally changes decades of established policy on the most important visa allowing U.S. companies to hire foreign nationals.”

With regard to the employment visa issues noted above, the details of the memos in question have yet to be resolved. However, based upon anecdotal evidence from some practitioners, there does appear to be something of a rise in the number of Requests for Evidence (RFE) being promulgated by USCIS. This author can neither confirm nor deny that RFEs are on the rise, but it leads to the issue of RFE avoidance. Particularly in family visa cases, such as petitions for a K1 visa or a K3 Visa, a couple must be separated during the US visa process. Therefore, if an RFE is avoided it could mean that the couple will be reunited more quickly. As a result, proper petition preparation is necessary in order to have a better chance of forestalling an RFE.

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