Visa Lawyer Blog

Articles Posted in Family Visas

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John came to our office distraught after receiving a notice of decision from USCIS indicating that his wife’s green card application was being denied, because the evidence John had submitted with the application was not sufficient to establish his wife’s eligibility for adjustment of status. Specifically, John had failed to provide the necessary documents for the I-864 Affidavit of Support, a form that must be filed along with the green card application to show that the U.S. Citizen Spouse or joint sponsor can financially support the intended beneficiary (in this case his wife), as well as to prove that the beneficiary will not rely on the government for financial support. The I-864 Affidavit of Support is very important for adjustment of status petitions. Failure to properly complete the I-864, and provide the necessary documents to prove that the petitioner is capable of financially supporting the beneficiary will result in a denial of the I-485 Application to Register Permanent Residence or Adjust Status.

During our consultation, John, the U.S. Citizen spouse, told us that he completed his wife’s green card application himself, and compiled what he thought were the documents necessary to go along with the application. Much to his surprise, he discovered that he had not completed the I-864 Affidavit of Support correctly, and had not included the proper documentation with the application. Because of this, his wife’s green card application was being denied, even though he did indeed have the financial means to support his spouse and had the necessary documentation to prove it.

Unfortunately, John did not do his homework to research how to complete the I-864 Affidavit of Support properly, and did not understand what documents he needed to include to prove his financial ability to provide for his spouse. Like many people, John thought that it was best to save himself some money and file his wife’s green card application himself without having to pay a lawyer to complete the paperwork. He told himself how hard can it be? While it is true that many people successfully file their green card applications on their own, it is important to know that if you decide to do the application yourself, you must read the instructions of each form to be filed with the I-485 application very carefully. Failure to do so is likely to result in the denial of your application. In that sense, you may be doing yourself a disservice by filing on your own. Lawyers have the knowledge and expertise to file a green card application seamlessly.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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New developments have recently unfolded since the passage of Texas’ controversial SB4 law—a law that bans sanctuary cities in the state of Texas, and requires local jurisdictions and law enforcements officials to cooperate with federal immigration authorities to apprehend undocumented immigrants in the state of Texas.

The controversial bill has suffered its first blowback. The border town of El Cenizo has sued the state arguing that the ban is unconstitutional. The Mayor of El Cenizo, Raul Reyes, told reporters that the bill “hinders the relationship between police departments and the community,” and “decreases criminal activity reports which opens up the door to more domestic violence and more sexual assaults against immigrants.” The city of El Cenizo has been joined in their lawsuit against the state by Maverick county, El Paso county, and the League of United Latin American Citizens. The small town of El Cenizo, Texas first came to national attention when the Spanish language was declared the city’s official language.

The Texas Attorney General envisioned a pushback from “sanctuary cities.” At about the same time that the governor of Texas signed SB4 into law, the attorney general sought to protect the state against future challenges to the law, by filing a lawsuit against known “sanctuary cities” in the state of Texas that have limited the federal government’s power to detain undocumented immigrants by refusing to cooperate with federal immigration officials. The lawsuit was filed on May 7, 2017 in the United States District Court for the Western District of Texas. The state of Texas filed the lawsuit so that they could have a single court ruling upholding the constitutionality of SB4 that would invalidate any lawsuits filed against the state.

Among the cities which have been identified as “sanctuary cities” that have been noncompliant with the federal government’s demands are: Travis County, the city of Austin, and other local officials including Travis County Sheriff Sally Hernandez, who has limited cooperation between local law enforcement and federal immigration officials.

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On May 7, 2017 Governor Greg Abbott of Texas signed the controversial “Texas Senate Bill 4” into law which will take effect on September 1st. Among its major provisions, the bill outlaws the establishment of “sanctuary cities” which serve as safe havens for undocumented immigrants, requires local law enforcement officials to cooperate with federal immigration authorities by holding undocumented immigrants subject to deportation, and permits local law enforcement officials to question individuals regarding their immigration status in the United States. In September, the bill will be enforced by officers throughout the state of Texas including by police officers on college campuses. The bill, however, will not apply to officers contracted by religious groups, schools, government mental health care facilities, and hospitals.

More specifically SB4:

  • Blocks local entities from passing laws and/or adopting policies that prevent local law enforcement officials from inquiring about a person’s immigration status
  • The law makes it a crime for sheriffs, constables, police chiefs, and local leaders to refuse to cooperate with federal immigration authorities (Class A misdemeanor)
  • Imposes sanctions on law enforcement officials and local jurisdictions that do not comply with the law
  • Cities who fail to comply with the law may face fines of up to $25,000 per day, and the police chiefs, sheriffs, or mayors of noncompliant jurisdictions may be charged criminally and/or removed from office
  • Allows police officers to question anyone they believe to be residing in the United States unlawfully about their immigration status, including at routine traffic stops

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For this month’s staff spotlight, we invite you to learn more about our legal technical writer Suzanne Andersen.

Suzanne Andersen is a new addition to our firm, having joined in 2016. Ms. Andersen holds a Master of Laws degree from California Western School of Law, in addition to her law degree from the University of Southern Denmark.  Prior to attending law school, Ms. Andersen obtained a degree in Psychology from the University of Copenhagen.

Before joining the Law Offices of Jacob Sapochnick, Ms. Andersen practiced law in Denmark for three years in the area of litigation, white collar crime and immigration, contract law, tort law and human rights.

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The newly appointed U.S. Secretary of State Rex Tillerson is quickly mobilizing government resources to increase scrutiny and implement tougher screening procedures for applicants who are applying for a U.S. visa or other immigration benefit at U.S. Consular posts and Embassies abroad. Reuters has reported that Secretary Tillerson has sent a series of internal cables (four in total) to consulates and embassies abroad instructing them of new measures to increase vetting of visa applicants (both immigrant and non-immigrant). These cables are as follows: (1) Cable 23338 entitled “Guidance to Visa-Issuing Posts” issued on March 10, 2017; (2) Cable 24324 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 15, 2017; (3) Cable 24800 entitled “Halt Implementation” of President Trump’s new travel ban due to a temporary restraining order by a federal court, issued on March 16, 2017; and finally (4) Cable 25814 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 17, 2017.

In these cables, Tillerson has directed U.S. consulates and embassies to specifically identify population risks that warrant “increased scrutiny” and to implement tougher screening procedures for this particular group of people. Applicants who fall into one of the identifiable population groups will be subjected to a higher-level security screening. The cable does not identify whether embassies will be coordinating to provide a uniform standard for identifying populations who pose a security risk. This is a serious cause for concern, since U.S. embassies will likely vary in how they assess which groups pose a security risk. In addition, as part of these measures, the Secretary has ordered a mandatory social media check for all applicants who have ever visited or been present in any territory that is controlled by the Islamic State. Previously, social media screening was not a part of the regular screening process for U.S. visa applicants, however this screening process has always been a discretionary measure.

In addition, the cables provided instructions for the implementation of President Trump’s newly revised executive order on immigration which sought to temporarily bar the admission of foreign nationals from Syria, Libya, Sudan, Somalia, Iran, and Yemen, as well as Syrian refugees, including mandatory enhanced visa screening procedures. Several of these cables were quickly retracted by the Secretary of State after a federal judge from the state of Hawaii issued a Temporary Restraining Order blocking Trump’s embattled executive order from proceeding as planned. The Trump administration had envisioned strict new guidelines for vetting U.S. visa applicants, and this vision was reflected in Tillerson’s cables.

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On Tuesday, February 28, 2017 the President of the United States Donald Trump addressed a joint session of congress for the first time ever delivering a unifying message to the American people. In his speech Donald Trump softened his stance on immigration while at the same time remaining true to his campaign promises.

On the topic of immigration, Donald Trump first discussed the creation of a Task Force to Reduce Violent Crime headed by the Department of Justice. Additionally, he stated that under his orders, the Department of Homeland Security, and Justice, the Department of State and Director of National intelligence will implement a plan to combat organized crime and the war on drugs. Trump pledged that he would work to dismantle criminal cartels and prevent them from bringing drugs into the country.

Second, Trump promised to keep his campaign promise to enforce the immigration laws of the United States and increase border security to “restore integrity and the rule of law at our borders.” He added, “We want all Americans to succeed, but that can’t happen in an environment of lawless chaos.”

Third, Trump called for the construction of a wall along our Southern border with Mexico to deter undocumented immigrants from entering the United States and to deter drug dealers and criminals from entering the United States and committing acts of violence. To his critics, Donald Trump posed the following question, “What would you say to the American family that loses their jobs, their income, or their loved one because America refused to uphold its laws and defend its borders?”

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32876675381_f3e46f3cd9_cWe would like to wish our clients a very happy Presidents Day! Please remember that our office is closed in observance of the holiday, but will reopen tomorrow. To read more about the services we offer please visit our website.

 

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As many of you know the H-1B visa lottery for fiscal year 2018 is fast approaching. As usual, the competition will be fierce, as hundreds of thousands of highly skilled professionals prepare to file their H-1B visa petitions beginning April 1st through the April 7th deadline. While filing by April 1st (the first day that applications are accepted) certainly gives applicants greater peace of mind, filing before the April 7th deadline does not necessarily increase an individual’s chances of being selected in the lottery. Throughout the years, our office has seen the selection of many petitions that were filed on or close to the April 7th deadline.  With that being said, we expect the competition this year to be even more intense, that is why we want to give you our top tips about what you should be doing NOW to prepare for H-1B season and increase your chances for success.

First some statistics on fiscal year 2017:

  • For fiscal year 2017, USCIS received over 236,000 H-1B petitions, which included petitions counting toward the general cap and advanced degree exemption; approximately 3,000 more petitions when compared to H-1B petitions received for fiscal year 2016. This trend is likely to continue, giving you all the more reason to prepare for the H-1B season early on.
  • For fiscal year 2017, the H-1B cap was reached within the first 5 business days of the H-1B filing period (April 1 to April 7). We expect this trend to continue as in previous years. During fiscal year 2017, USCIS received more than 20,000 petitions for the advanced degree exemption. This number will undoubtedly increase for fiscal year 2018.
  • For fiscal year 2017, USCIS conducted the randomized computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas counting toward the advanced degree exemption first. Then, unselected advanced degree petitions were given a second chance of being selected by being placed in the lottery toward the general 65,000 cap.  Individuals holding an advanced degree from the United States thus have two shots at being selected for the lottery.

Chances of selection

The chances of being selected in the lottery for fiscal year 2017 ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree or equivalent. Compare this to the chances of being selected in the lottery during fiscal year 2016 which ran at 60% for U.S. advanced degree holders, and 30% for bachelor’s degree holders or the equivalent. We expect the percentage of selection to continue to increase for U.S. advanced degree holders and foreign workers holding bachelor’s degree or equivalent, by roughly 5% according to recent statistics. This of course will depend on the demand for the H-1B visa for fiscal year 2018.

Office Stats

For fiscal year 2017, 35%  of H-1B cap-subject petitions that were filed by our office were selected in the H-1B randomized lottery that took place early April 2016. 13% of those petitions were filed with premium processing, while 22% were filed with regular processing. In total our office filed 55 H-1B Petitions: 15 advanced degree petitions and 40 bachelor’s cap or equivalent petitions. Of these, 46 were filed with regular processing and 15 with premium processing. The majority of these petitions were filed with the California Service Center. Of selected petitions for fiscal year 2017, the top specialty occupations included: Applications Developer, Market Research Analyst, and Software Engineer.

H-1B Overview

As in previous years H-1B petitions for fiscal year 2018 will begin to be accepted by USCIS on April 1, 2017 up until April 7, 2017. Foreign workers in specialty occupations and their employers will compete for one of the coveted 65,000 H-1B visas available each fiscal year. The H-1B visa program is limited to a 65,000 congressionally mandated visa cap. Foreign workers holding a U.S. Master’s degree or higher are exempt from the 65,000 cap, however only the first 20,000 advanced degree petitions received by USCIS will qualify for the cap exemption. In addition, certain foreign workers such as foreign workers who have been offered employment under U.S. Chile or U.S. Singapore free trade agreements, and foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are exempt from the cap, according to the Consolidated Natural Resource Act of 2008 (CNRA). Advanced degree petitions received after the 20,000 spots have been allocated will count toward the regular cap along with foreign workers holding bachelor’s degrees (or equivalent including work experience in lieu of formal education). USCIS will receive more than the 65,000 petitions for the H-1B visa program during the first five business days that the application period is open, from April 1st to April 7th. When the cap has been reached, USCIS will make an announcement, in recent years this announcement has been made on April 7th and begin the selection process to fill the 65,000 cap through a randomized lottery system. Petitions that are not selected will be rejected along with their filing fees. Duplicate H-1B petitioners during the same fiscal year, are not allowed, and may be subject to sanctions. Employers may not file an H-1B petition on behalf of an employee more than 6 months before the employee’s intended start date. Once an H-1B visa worker has been selected and approved, the foreign worker may begin employment on October 1st of that fiscal  year. The H-1B visa is issued for a three-year period that can be extended for an additional three years.

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