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Posts Tagged ‘American Visa’
4th MAR 2010
Court Finds USCIS Overstepped Authority
Posted by : admin
In some cases, it may be necessary to file a lawsuit against the United States Citizenship and Immigration Service (USCIS). These instances are viewed as aberrations by most US Immigration lawyers because, for the most part, USCIS follows the statutory scheme set out by the United States Congress. In some case, a Petitioner or Beneficiary must seek to have an agency compelled to perform a function that is required pursuant to their duties in office. In cases such as this, a writ of mandamus may be the proper remedy. However, when USCIS acts outside of the rules, it may be necessary for a petitioner or beneficiary to take legal action in the form of a lawsuit in order to remedy an injustice.
Recently, the United States Ninth Circuit Court of Appeals heard a case involving the adjudication of a petitioner for an EB-1 visa. To quote a recently promulgated email from the Immigration Policy Council:
“Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate ‘the research community’s reactions to his [scholarly] publications’ - an arbitrary requirement with no justification in the law.”
Many people are under the mistaken impression that agencies, such as, but not limited to, USCIS, involved in the United States visa process make make unilateral decisions regarding what will be required of the petitioner and beneficiary in a given case. This is not true as the requirements for petition approval are based upon the relevant law. No agency, be it USCIS, Immigration and Customs Enforcement (ICE), nor Customs and Border Protection (CBP) may unilaterally create requirements that do not exist under US law. This point was driven home in the case itself when the court was quoted as saying that:
“neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].”
This case marks a positive step in the right direction away from governmental capriciousness. In an interesting comment about this case Mr. Benjamin Johnson, Executive Director of the American Immigration Council stated:
“Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren’t in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores.”
United States Immigration is a complex and often confusing area of the law. For more information on American visas, specifically those obtained in the Kingdom of Thailand, please see: US Visa Thailand.
25th DEC 2009
Current Immigration Reform Bill Does Not Address Same-Sex Visas
Posted by : admin
As it is the Holiday season in the United States many families are reunited with their loved ones in order to be together during the festivities. However, there are some families who cannot be reunited in the US due to restrictions imposed by US Immigration law. Most notable among those who probably will not be re-united this Christmas are same-sex bi-national couples. Since the Defense of Marriage Act was passed in the mid-1990’s it has been virtually impossible for bi-national same-sex couples to receive US Immigration benefits even where their marriage was executed in a jurisdiction in the United States of America. In a recent blog post on the website ImmigrationEquality.org the author notes that recently proposed Immigration reform legislation does not address the issues associated with Lesbian, Gay, Bisexual, and Transgendered (LGBT) Immigration. To quote directly from the blog:
“Earlier today, Congressman Luis Gutierrez (D-IL) introduced an immigration reform proposal in the House of Representatives that does not include lesbian, gay, bisexual and transgender families. We pushed hard for inclusion in this bill, and we are deeply disappointed. However, I want to be clear: this is not the comprehensive immigration reform package which will move through the House. And, there are many reasons to remain optimistic about our inclusion in CIR down the road.
First, it is important to note that Congressman Gutierrez remains a co-sponsor of the Uniting American Families Act (UAFA) and the LGBT-inclusive Reuniting Families Act (RFA) in Congress. In the weeks and months leading up to the introduction of the Gutierrez bill, Immigration Equality pushed for inclusion of our families. When it became clear that this was not to be, we asked for the Congressman to continue to work for an end to immigration laws that discriminate against LGBT families, and we have every expectation that he will do so.”
It is this author’s opinion that the same-sex immigration issue will likely be dealt with in the United States Courts as the United States House of Representatives and the United States Senate seems reluctant to either overturn the Defense of Marriage Act (DOMA) or pass the Uniting American Families Act (UAFA). However, this author believes that the Defense of Marriage Act is in direct violation of the 10th Amendment of the United States Constitution because DOMA overrides state prerogatives regarding what constitutes a valid marriage. From a Constitutional standpoint, this author hopes to soon see the onerous provisions of DOMA either repealed through legislation or struck down by the courts.
For more information please see: US Visa Thailand
22nd DEC 2009
AILA Praises Proposer of New Immigration Reform Bill
Posted by : admin
In a recent blog posting the former President of the American Immigration Lawyers Association (AILA), Mr. Charles Kuck, praised Congressman Luis Gutierrez for proposing an Immigration Reform Bill in the United States House of Representatives. Currently, some members of AILA feel that the American Immigration system is highly flawed and, to quote Mr. Kuck’s blog posting:
“The results are tragically similar, children separated from their parents, husbands separated from their wives, businesses unable to secure their future because of a lack of talent and skilled employment, and an economy unable to nimbly shift from the 19th and 20th century into the 21st century. As a country, we can no longer tolerate what has become a human disaster.“
The human perspective of United States Immigration policy is an aspect that some lawmakers fail to consider, but one that they probably should not overlook because America is a nation founded by immigrants and it is our immigrant heritage that makes America a vibrant and innovative nation. The most disturbing facet of the current United States Immigration infrastructure is the fact that it does have a tendency to keep family members separated for, what can turn out to be, a substantially long period of time. For those couple who follow the proper immigration procedures it could still take longer than one year to re-unite a couple.
Of further importance is the need to rectify the US Immigration apparatus with regard to same-sex couples. Unfortunately, due to provisions in the Defense of Marriage Act, it is not possible for same-sex married couples to obtain US Immigration benefits based upon a lawfully executed marriage. There are advocates in the House of Representatives and Senate who wish to change this unfortunate state of affairs, but it seems that they have an uphill battle ahead of them.
Another critical aspect of US Immigration that is desperately in need of an overhaul is the area of employment based visas. Although America is only slowly coming out of “The Great Recession” and is still reluctant to allow more foreign workers into the American labor force, this is a necessity as foreign highly-skilled workers keep the US economy on the cutting edge of both innovation and technology. The United States does itself a disservice by prohibiting foreign skilled workers from entering the country. Hopefully Congressman Gutierrez will be able to get this much needed bill passed and usher in a modern era in US Immigration.
25th OCT 2009
Director of USCIS says Family Unification is the Goal of Immigration
Posted by : admin
Recently, Alejandro Mayorkas was appointed as the Director of the United States Citizenship and Immigration Service within the United States Department of Homeland Security. Mr Mayorkas was recently interviewed by members of the United States and foreign press corps in an effort to hear his views on United States Immigration policy and the future of US Immigration law.
Below are some of the important quotes that this author found both interesting and insightful, the full interview transcript can be read here.
This blog is mostly dedicated to United States family immigration and visas. Therefore, it was a pleasure to hear that Mr. Mayorkas considers US Family Immigration to be a major priority of his agency:
“…One of the goals of an immigration system[:] family unification. Do the laws that we have now achieve that most ably? That’s a question that is — that I think is a valid one to ask. And so we have to take a look at the goals, as a nation, of our immigration system and ask does the structure that we have in place – or do the mechanisms that we have in place accomplish those goals most ably, most completely and most efficiently? And where there are shortcomings, that is, indeed, what immigration reform is in part about.”
As we have posited previously on in this forum, the current system of adjudicating non-immigrant family visas could be considered redundant and a poor distribution of resources. In the case of the K1 visa and the K3 visa one could make a valid argument that such visas, as they involve the doctrine of dual intent, could be completely adjudicated at the Embassies and Consulates abroad while letting USCIS deal with more pressing issues at home. If K visa non-immigrant family members do decide to adjust status, then the USCIS will need to deal with the case as the adjudication will occur under their domestic authority.
Mr. Mayorkas was also quoted as saying, “The fact that I myself was once a refugee to this country informs my views of our agency’s mission and the priorities that we will carry forward, during the time that I am privileged to serve.” This author is definitely happy to see a Director who has personal knowledge of the Immigration system. Hopefully, these personal insights will result in a net benefit for everyone who has dealings with USCIS.
The Director was further quoted as saying,
“The goal of family reunification is indeed one that we hold dear to our efforts as we try to administer the immigration laws fairly and with justice always in mind. Ultimately, our adjudications are indeed on an individualized basis, and there are mechanisms that the law acknowledges to achieve family reunification in particular cases. And that is very much a part of the work that we do.”
This author is happy to hear such sentiments from the Director of USCIS and hopefully this is a sign of things to come as the Immigration system becomes a more compassionate and efficient agency of the US government.
20th SEP 2009
US Visa Thailand: The E2 Visa
Posted by : admin
The E2 visa is a special non-immigrant visa available to prospective investors who are also citizens of countries with a trade or commercial treaty with the United States of America. Citizens of the Kingdom of Thailand can apply for E2 visa status as the United States and the Kingdom of Thailand, at the time of this writing, maintain a Treaty of Amity and Commerce.
In order to qualify for an E2 visa the applicant must invest a “substantial amount” of money into the American economy in the form of a business venture. Although not specifically defined in the statutes or treaties, the term “substantial amount” has been largely left to be determined by the Consular officers posted at the US Embassy or Consulate where the visa application is being submitted. Although information regarding the necessary amount of money varies, a minimum investment of at least one hundred thousand dollars should be available for investment before a prospective applicant should contemplate submitting an application. That being said, the investment will be viewed in relation to the overall enterprise. As a result, a one hundred thousand dollar investment may be viewed as substantial if one is setting up a small restaurant in a region with a relatively low cost of living. However, that same amount of money will probably not be viewed as “substantial” if one is seeking to undertake the construction of a shopping mall in a heavily urban area. The United States Citizenship and Immigration Service utilizes an ‘Inverted Sliding Scale’ in order to make determinations as to whether or not the underlying investment should be considered “substantial” in relation to the total cost of the economic endeavor.
Another issue that must be considered when discussing the E2 visa is the fact that the business investment ought to create employment opportunities for American Citizens. Although it is probably more desirable to hire American workers before the submission of the E2 application. Providing evidence that employment opportunities will come about in the reasonably foreseeable future is usually sufficient for approval of at least the initial application.
Another visa category that is generally of interest to those researching the E2 is the L1 visa. The L1 visa is a non-immigrant visa category that employs the dual intent doctrine to allow foreign employees of an international company to transfer to a US-based affiliate for the purpose of carrying out business activity in the United States. In some cases, an already established foreign corporation will wish to establish a presence in the United States. In order to staff the new company, foreign managers and executives will need travel documents to travel and work in the United States.
For related information please see our page on the establishment of an Amity Treaty Company
18th SEP 2009
US Immigration Statistics: Demographic Impact
Posted by : admin
In a recent report published by the Immigration Policy Center, the issues surrounding United States Immigration and its demographic impact were discussed. To quote an email sent out by the Center, the demographics of Immigrant’s in the United States is somewhat surprising:
“Roughly one-in-seventeen U.S. citizens are foreign-born, and tens of millions of native-born U.S. citizens have immigrant parents. This demographic reality has important political ramifications. A rising share of the U.S. electorate has a direct personal connection to the immigrant experience, and is unlikely to be favorably swayed by politicians who employ anti-immigrant rhetoric to mobilize supporters.”
The fact is: were it not for the influx of immigrants to the United States, the “birth dearth” being experienced in other western countries would be highly prevalent in the United States of America. Immigrants add a great deal to the American economy as well as the societal structure as they compensate for the aging American population. Systems such as social security and Medicare would be in far greater peril were there to be no influx of foreign immigrants traveling to America on a USA visa in order to live and work.
In the same email, there were some compelling statistics regarding immigrant populations in the United States:
“There were 38.1 million immigrants living in the United States as of 2007, of whom 42.5% were naturalized U.S. citizens.
The number of naturalized U.S. citizens increased from 8 million in 1990, to 12.5 million in 2000, to 16.2 million in 2007.
There were 45.5 million Latinos in the United States in 2007, of whom 11.2% were naturalized U.S. citizens and 60.2% were native-born U.S. citizens.
There were 13.3 million Asians living in the United States as of 2007, of whom 37.7 % were naturalized U.S. citizens and 31.8% were native-born U.S. citizens.”
Of particular interest for this author is the final statistic regarding people of Asian descent. As a law firm in Bangkok that primarily handles United States Immigration for Thai fiancees and spouses of US Citizens, this statistic truly hit home. The K1 visa, the K3 visa, and the CR1 visa applications are processed at the US Embassy in Bangkok, Thailand. We see many happy couples using the American Immigration system in order to reunite with their US Citizen loved ones. Many of these immigrants proceed to adjust their status and remain with their American loved one long term. Some proceed further and complete the naturalization process. In many cases, children are born from these happy unions. In all, America is fueled by Immigration as it is a nation of immigrants. As time passes hopefully the American government will keep this in mind when creating new legislation which impacts the Immigration process.
3rd SEP 2009
USCIS to grant deferred action to widows of American Citizens
Posted by : admin
In a recent announcement from the United States Citizenship and Immigration Service (USCIS), Deferred Action will be granted to those widows and widowers of United States Citizens who die before the two year anniversary of the foreign spouse’s arrival in the United States of America. To quote the AILA press release:
“U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano, on June 9, 2009, announced that DHS would grant deferred action relief to surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Based on the Secretary’s decision, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for an adverse decision from USCIS would be the death of a U.S. citizen spouse prior to the second anniversary of their marriage.”
The first question that probably comes to the mind of the reader is: ok, so what does “deferred action” mean in practice? To further quote the USCIS press release:
“Deferred action is an exercise of prosecutorial discretion not to pursue removal from the United States of a particular foreigner for a specific period. Deferred action is not intended to be a permanent remedy for this situation; rather it is a temporary discretionary solution.”
In cases involving United States Immigrant visas, there are two types of immigrant visa categories for spouses of American Citizens. There is the Conditional Resident Visa (CR1) and the Immediate Relative Visa (IR1). The Conditional Resident Visa is meant for spouses of United States Citizens who have been married for less than two years. IR-1 visas are meant for those who have been married for more than 2 years. When a Permanent Resident is in CR-1 status, then they must apply for a lift of conditions before they change status to IR-1. If residence is conditional, then the immigrant must leave the USA if the lift of conditionality is not filed and approved. In many cases, only the US Citizen spouse can file to have the conditions lifted. Therefore, if the US Citizen spouse dies before the lift of conditions is filed and approved then the Conditional Permanent Resident could fall out of status as soon as 2 years is up. Deferred action places the Resident in a kind of limbo in which they can lawfully remain in the USA, but are not moved in IR-1 status. The press release goes further and states:
“Aliens with deferred action may apply for an Employment Authorization Document (EAD) if they can establish an economic necessity for employment.”
Therefore, the alien in the US in this situation could work and reside without fear of being removed, but the situation would seem to be simply a temporary stopgap measure and it does not appear that this would be a viable long term legal option.
Bear in mind that this issue only deals with US spousal and fiancee visas after adjustment of status. Therefore, the above analysis is not relevant to the K1 visa or the K3 visa per se, although it would be relevant if the foreign fiancee or spouse adjusts to CR1 status.
11th JUN 2009
Adjustment of Status and the K-1 Visa
Posted by : admin
Adjustment of status is necessary after a beneficiary enters the USA and marries the K-1 visa petitioner. Adjustment of Status requires the filing of an I-485 application.
The Difference between “Adjustment of Status” and “Change of Status”
Many people going through the travails of Immigration procedure confuse “adjustment of status,” with “change of status.” In common vernacular the terms are similar, if not synonymous. However, in the context of US Immigration they have different meanings entirely. If an alien adjusts status, this means that the alien changes from a non-immigrant visa category to an Immigrant visa category and is therefore accorded Lawful Permanent Residence (a Green Card). If a person present in the USA “changes status,” this means that they convert from one non-immigrant visa category to another.
K-1 Visas and Adjustment
As a hybrid visa, the K-1 allows an alien to enter the USA with the intent to marry an American and obtain a
Green Card. While the Green Card application is pending, the alien spouse is permitted to stay stateside. In fact, the alien spouse should not subsequently depart the US without first getting an advance parole travel document. Failure to obtain advance parole will very likely result in a K-1 visa conferee’s petition being canceled.
Provided the alien fiancee remains in status in the United States and the Adjustment of Status is approved, then lawful permanent residence will be conferred. This permanent residence will be conditional for 2 years. 3 months prior to the 2nd anniversary of adjustment, the couple should file for an I-751 removal of conditions of residence in the United States. After the removal of conditions occurs the alien will able to remain a resident unconditionally.
Appeals of Negative Adjustment of Status Decisions
In a situation where the adjustment of status from K-1 to Lawful Permanent Residence has not been approved, the decision can be appealed. Also appeals can be made pursuant to Section 586 of Public Law 106-429 if the appellant meets the requirements set forth in the rules. Any appeal of an adverse adjustment ruling should be submitted to the Administrative Appeals Unit (AAU) for review. As a general rule, the applicant who has been denied adjustment must appeal within Thirty-Three days of the Immigration Judge’s ruling. Upon receipt of the appeal application and remittance of processing fee the appeal is forwarded to the Board of Immigration Appeals in the US Capital for review and adjudication.
(It should be noted that an appeal should not be confused with a waiver. In cases where a legal ground of inadmissibility is found to exist, the consular officer’s decision is not subject to appeal, but instead a waiver may be obtained.)
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