Visa Lawyer Blog

Articles Posted in Denials

by

ai-generated-9069956_1280The fallout of the 2024 Presidential election has left high-skilled foreign workers asking what the Trump administration may have in store for them in the new year.

Perhaps the most vulnerable to attack is the H-1B work visa program, which was previously targeted by the Trump administration. A second term for Donald Trump promises to bring a new set of challenges for H-1B workers, including a hike on mandated salaries paid by U.S. employers, and increased scrutiny leading to a predicted surge in Requests for Evidence and H-1B visa denials.

About the H-1B Work Visa

H-1B workers are a subset of professional workers that have long filled a critical need in the U.S. labor market, especially for those working in the sciences, technology, engineering, and mathematics (STEM) fields.

Every year, U.S. employers from hundreds of industries use the H-1B visa program to bring highly skilled and well-educated foreign professionals to work for them in the United States. To qualify, H-1B workers must have a job offer from a U.S. employer to work in a “specialty occupation,” which requires a baccalaureate degree or the equivalent work experience to work in the field. Applicants must demonstrate that they have the academic and professional qualifications to work for the U.S. employer.

Only 65,000 H-1B visas are available every year, with an additional 20,000 visas made available to professionals with a U.S. master’s degree or higher in their field.

The annual visa limits mean that the H-1B work visa program is a “lottery” based visa, requiring employers to submit an electronic registration every Spring, to have a chance of being selected.

Continue reading

by

beach-4455433_1280In this blog post, we discuss what undocumented spouses and stepchildren of U.S. Citizens can expect after applying for Parole in Place using the new USCIS online application called Form I-131F.

What to Expect After Filing Form I-131F Parole in Place

Once you have properly submitted the Form I-131F using your myUSCIS online account, you will receive a I-797 receipt notice from USCIS by mail as proof that your application was submitted. This receipt notice will contain your receipt number which you can use to track your case on the USCIS case tracker.

Please note that the receipt notice can also be accessed on your myUSCIS portal

The Biometrics Appointment

Several weeks after filing Form I-131F, you will receive a biometrics appointment notice, which will indicate the date, time, and location where you must appear for USCIS to collect your fingerprints, photographs, and a signature.

Your biometrics information will be used to run a background check for criminal history, verify your identity and, and to prepare certain immigration documents (for example, an Employment Authorization Document also known as a work permit).

If USCIS has collected your biometrics information in the past, it is possible that they will reuse such information. If that is the case, USCIS will notify you via your myUSCIS online account and send you a notice by mail.

Receiving a Decision

Those who meet the eligibility criteria for parole in place under the Keeping Families Together program, will receive a discretionary grant of parole for a 3-year period.

As part of the decision-making process, USCIS will take into consideration various factors to determine whether a favorable exercise of discretion is warranted in your case such as:

  • Your criminal history
  • The existence of removal proceedings
  • Unexecuted final removal orders
  • The results of background checks, including national security and public safety vetting Positive and adverse factors presented
  • Any other relevant information available to or requested by USCIS.

Those who have any disqualifying criminal history or are found to be a threat to national security, public safety, or border security, may be denied for parole in place.

Factors such as pending criminal charges will make you ineligible for parole in place while the charge remains pending. Certain criminal convictions can also make you ineligible for parole in place under this process.  Please discuss any criminal records with an experienced immigration attorney before filing Form I-131F.

Continue reading

by

united-states-supreme-court-6330563_1280The recent Supreme Court decisions handed down in Loper Bright v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, have overturned a longstanding rule known as the “Chevron” doctrine, which eliminates the need for federal courts to defer to federal agency decisions and regulations moving forward. This move essentially strips power away from federal agency interpretations of the law and gives it back to the courts.

This is positive news in the world of immigration, considering that a federal agency’s interpretation of the Immigration and Nationality Act (INA) will no longer automatically prevail when litigating cases in court and filing immigration challenges to visa denials.

This will benefit many immigrants and businesses who for many years have been blocked by federal agencies from obtaining employment-based visas and green cards based on ambiguous agency interpretations of their cases.

For instance, in removal cases, those seeking review of decisions previously made by immigration judges’ or the Board of Immigration Appeals (BIA) will now have a clean slate, since courts no longer have to rely on an agency’s standpoint and can now interpret unclear laws with a new set of eyes.

These rulings could also pave the way for new litigation to be filed to defend challenges to previous visa denials. Where interpretations of the law once made by the U.S. Citizenship and Immigration Services (USCIS) were automatically upheld in court, they will now be challenged forcefully.

U.S. employers seeking a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also have greater opportunities to argue their cases in court and win on behalf of their clients.

Continue reading

by

couple-3098951_1280

If you are a family-based conditional permanent resident who was issued a two-year green card based on your marriage to a U.S. Citizen, then you may be interested to know that the U.S. Citizenship and Immigration Services (USCIS) recently updated its policy guidance for Form I-751 Petition to Remove Conditions on Permanent Residence.

The new policy guidance provides new updates for the following individuals:

  • Conditional permanent residents who filed an I-751 petition jointly with their spouse, but are no longer married since their filing (either because of divorce or abuse)
  • Cases where the I-751 petition is being terminated for failure to file the application on time with USCIS or lack of evidence.

Overview

By law, your permanent resident status is conditional if you were married to a U.S. Citizen for less than 2 years on the day you obtained permanent resident status.

This means that at the end of your I-485 adjustment of status (green card) application process, you will receive conditional permanent residence (a 2-year green card) if you were married for less than 2 years at the time of the adjudication of your I-485 adjustment of status application. On the other hand, those who have been married for more than 2 years receive a 10-year green card that is not subject to conditions.

To remove the conditions on permanent resident status, conditional permanent residents must file Form I-751 Petition to Remove Conditions on Permanent Residence within the 90-day period before the expiration of their green card status. The I-751 petition must be filed jointly with your U.S. citizen spouse, or you must qualify for a waiver of the joint filing requirement if you are no longer married.

Continue reading

by

eye-gd012fb6ce_1280

The Department of State raised eyebrows earlier this month when it released information that it will be reducing the waiting period for 221(G) “administrative processing,” in an effort to process visas more efficiently.

While this is welcome news, in practice it may not mean much. Consulates and Embassies have been notoriously secretive when it comes to 221(G) administrative processing and do not reveal the reason for a visa applicant being placed in administrative processing in the first place, nor the type of security checks that are being conducted.

What is 221(G) Administrative Processing?

First, let’s explain what administrative processing is. When an applicant visits a U.S. Consulate or Embassy overseas for their visa interview, there are only two possible outcomes that can occur at the conclusion of their interview. The Consular Officer may choose to either issue or “refuse” the visa. A refusal is not the same as a denial. It simply means that the visa applicant has not established his or her eligibility for the visa they are seeking for the time being, and the Consulate needs additional time or requires further information either from the visa applicant or another source to determine the applicant’s eligibility for the visa.

In most cases, visa applicants who have been “refused” will require further administrative processing.

How will I know if I have been placed in 221(G) administrative processing?

Visa applicants placed in administrative processing are often given what is called a “Notice of 221(G) Refusal” at the conclusion of their interview, which states that the visa application has been “refused” under section 221(G) of the Immigration and Nationality Act. The Notice should indicate whether additional administrative processing is required for your case, and whether any further action is required on your part, such as providing additional documentation or further information to process your visa.

However, in some cases visa applicants are not given such a Notice and will later discover that they have been placed in 221(G) administrative processing upon checking their visa status on the Consular Electronic Application Center (CEAC) visa status check webpage.

Continue reading

by

deadline-g8d26d903b_1920

In this blog post, we share with you new guidance released by the U.S. Citizenship and Immigration Services (USCIS) regarding instances where the last day of filing a benefit request or response to a Request for Evidence or a Notice of Intent to Deny, Revoke, Rescind, or Terminate, falls on a Saturday, Sunday, or federal holiday.

USCIS recently issued a policy alert clarifying that the agency does not accept paper-based applications or petitions on Saturdays, Sundays, or federal holidays.

In light of this, USCIS has clarified that, in instances where the last day of a period for filing a paper-based benefit request, such as the last day before a requestor’s or beneficiary’s birthday, or the last day of a qualifying time period, falls on a Saturday, Sunday, or federal holiday, USCIS will consider the filing to be timely if received by the end of the next business day.

Similarly, the USCIS update also clarifies that where the last day to respond by mail to a mailed Request for Evidence or a Notice of Intent to Deny, Revoke, Rescind, or Terminate falls on a Saturday, Sunday, or federal holiday, USCIS will consider the response timely if received by the end of the next business day.  

With respect to electronically-submitted responses, they are considered received immediately upon submission. These filings, therefore, are not affected by the fact that USCIS does not accept deliveries on Saturdays, Sundays, and federal holidays, and are not impacted by the new policy clarification.

Continue reading

by
37171919025_64031c19eb_z

Source: Flickr, Attribution: mollyktadams

We are saddened to report that late Friday, July 16, 2021, Federal Judge Andrew Hanen of the United States District Court for the Southern District of Texas, granted the plaintiffs in the case, State of Texas, et al., vs. United States of America, et.al, a permanent injunction, pending ongoing litigation over the legality of the Deferred Action for Childhood Arrivals (DACA) program.

As a result, new first-time applications for the DACA program will no longer be approved by the United States Citizenship and Immigration Services (USCIS) following Judge Hanen’s ruling.  Friday’s decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld, especially by the conservative leaning Supreme Court of the United States.

In his ruling, Federal Judge Hanen declared that the Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) with the initial creation of the Deferred Action for Childhood Arrivals (DACA) program and its continued operation. Accordingly, he has ordered that the DACA Memorandum and the subsequent creation of the DACA program be vacated and remanded to DHS for further consideration.

This action removes protections from deportation for thousands of undocumented young adults who came to the United States as children, otherwise known as Dreamers, and casts doubt on the future of the program.

Judge Hanen specifically stated that his ruling does not impact the hundreds of thousands of DACA recipients and others who have relied on the DACA program for almost a decade. This means that while new first-time applications for DACA will no longer be adjudicated by USCIS, Hanen’s ruling will not impact current DACA recipients.

Continue reading

by

who-s-denilo-3ECPkzvwlBs-unsplash-scaled

Welcome to the start of a new week! In this blog post we share with you some good news regarding the continuing flexibility policy being followed by the United States Citizenship and Immigration Services (USCIS) for applicants who have received a Request for Evidence, or Notice of Intent to Deny between March 1, 2020, and September 30, 2021, as well as new guidance for FY 2021 H-1B cap-subject petitioners, whose petitions were rejected or administratively closed solely because the requested start date was after Oct. 1, 2020.

 

USCIS RFE/NOID Flexibility Continued for Responses to Agency Requests

On June 24, 2021, USCIS announced that it will continue its flexibility policy and grant applicants who have received a request for evidence, notice of intent to deny, or such a related document, an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 through September 30, 2021.

What documents qualify for this flexibility in responding?

Applicants who receive any of the below mentioned documents dated between March 1, 2020 and September 30, 2021 can take advantage of the additional 60 days to respond to the request or notice:

Continue reading

by

ronny-sison-LUdelQ2EO2g-unsplash-scaled

We are very happy to bring you this late breaking news.

Today December 04, 2020, a federal judge from the United States District Court for the Eastern District of New York, issued a ruling that requires the Trump administration to post a public notice within 3 calendar days that it will accept new initial requests for DACA (Deferred Action for Childhood Arrivals) applications effective immediately.

Overview of DACA Litigation 

This order builds on the judge’s previous ruling which declared the actions of Department of Homeland Security Secretary Chad Wolf unlawful, given the court’s finding that Wolf was not lawfully serving as acting DHS secretary when he signed rules limiting applications and renewals for the Deferred Action for Childhood Arrivals (DACA) program.

As you may recall back in 2017 the Trump administration engaged in aggressive tactics to eliminate the DACA program, however the U.S. Supreme Court successfully blocked such attempts, ultimately allowing DACA renewals to continue to be accepted.

In its opinion, the Supreme Court stated that the government did not follow the law – namely the Administrative Procedure Act – when it sought to eliminate DACA. Thus, the court found that because the government did not go through the appropriate process to dismantle DACA it would remain in place. Interestingly, the Supreme Court made clear that while the government did not go through the appropriate process to eliminate DACA, that it had the power to do so provided the government followed the appropriate procedures. The justices also stopped short of requiring the government to accept initial requests for DACA.

The following year on July 28, 2020, the Trump administration continued to stand its ground in blocking acceptance of initial DACA applications with the release of a scathing memorandum authored by Wolf. In it Wolf directed DHS personnel to (1) reject all pending and future initial requests for DACA (2) reject all pending and future applications for advance parole absent exceptional circumstances, and (3) to shorten DACA renewals to a two-year period.

Continue reading

by

saul-bucio-P5YN73KrUAA-unsplash-scaled

Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.

Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.

The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.

The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.

The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.

Continue reading