Articles Posted in Family Visas

There has been a lot of confusion about the impact of the HIV removal on previous waiver denials and other related issues. USCIS released a good set of FAQ to address some concerns.

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), bars the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. The Department of Health and Human Services (HHS), on Nov. 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule takes effect on Jan 4, 2010. As of Jan. 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States.

Here are the most common questions asked:

What a great way to start the year. Today is an historic day in US Immigration law. The US has lifted a 22-year immigration ban which has stopped anyone with HIV/Aids from entering the country. President Obama said the ban was not compatible with US plans to be a leader in the fight against the disease.

The new rules come into force today and the US plans to host a bi-annual global HIV/Aids summit for the first time in 2012. The ban was imposed at the height of a global panic about the disease at the end of the 1980s. It put the US in a group of just 12 countries, also including Libya and Saudi Arabia, that excluded anyone suffering from HIV/Aids.

Rachel Tiven, head of the campaign group Immigration Equality, told the BBC that the step was long overdue.

Talk about the perfect student dream, getting a diploma – but never attending classes. And if you get a free visa with this, even better. A Southern California pastor has been accused by immigration authorities of helping foreigners fraudulently obtain student visas and handing out phony diplomas at a fake graduation ceremony on a campus where they never attended class.

Samuel Chai Cho Oh, 65, surrendered to authorities Tuesday and faces a charge of conspiracy to commit visa fraud for allegedly charging foreigners cash to help get them student visas on the premise they would attend the Christian university he owns in Fullerton.

But more than 100 students from countries including South Korea, Thailand and Japan never took classes at California Union University, which served as a shell for them to stay in the country legally, Immigration and Customs Enforcement officials said.

Stories like this one explain the increase in Mexican nationals fleeing to the US. As drug gangs clashed across Tijuana this week, a San Diego mother of two lost her life in the crossfire. Yajaira Orozco was shot in the head when assailants sprayed gunfire inside a seafood restaurant where she was sharing a meal with her husband.

ajaira Orozco, also 23, was one of about 50 people who have died in the past week in Tijuana, many of them as a result of a brutal battle for control between two rival drug-trafficking groups.

But while Yajaira Orozco was a U.S. citizen, Raul Orozco, her spouse, was brought to the United States from Mexico at age 5 and was not a legal resident. In order to apply for legal residency, he first had to move back to Mexico. There are may families in similar situations. Where one of the family members entered the US illegally, and upon marriage to US Citizen are trying to fix their papers. Under current law, the illegal immigrant must leave the US in order to complete the legalization process. Read a client’s story here. While the drug war in Mexico continues, such families are risking their lives every day.

DOS issued a list of questions and answers on the removal of HIV infection from the CDC list of communicable diseases of public health significance. Issues addressed include the background of the rule change, visa application process, HIV-positive applicants who have previously been refused a visa, and information dissemination about the rule.

One of the main questions for the public is, before the effective date of January 4, 2010, what changes will take place for non-U.S. itizens with HIV infection who wish to enter the United States?

Until the final rule goes into effect on January 4, 2010, non-U.S. citizens who have HIV cannot be admitted to the United States without waivers granted by the Department of Homeland Security (DHS). Certain nonimmigrants may qualify for issuance of visas from consular officers without first applying to DHS for waivers under a streamlined process established by DHS in its HIV Waiver Final Rule.

Great story from the ABA Journal about this not so covered visa option for victims of crime.

This is the story of Sud.

Sud was trapped—literally and figuratively. Hers was an arranged marriage. She had immigrated to the United States after her marriage in 2005 on an H4 visa. The visa made her ineligible to work, unable to get a Social Securi­ty number and completely dependent on her abusive husband.

Sud thought she had little choice but to endure the domestic violence if she wanted to stay in the United States. But she learned that she was eligible for a little-known visa available to otherwise undocumented immigrant crime victims called a U visa. The visa blocks the deportation of people like Sud if they cooperate with law enforcement.

AILA provided a very important update from the State Department, we wish to share with our readers.

The Department of State has issued comprehensive new policy guidance on the use of DNA testing in the visa application process. This new guidance is set forth in a new set of extensive Notes to 9 FAM 42.44.

In this new guidance, the State Department declares DNA technology to be the only acceptable non-documentary method for proving a biological relationship. The preferred specimen collection technique for DNA testing is by buccal (cheek or mouth cavity) swab.

According to the Department, DNA testing is expensive, complex and time consuming and thus should be recommended only if no other credible proof of the claimed relationship exists. Consular officers should treat DNA testing as a last resort: all other possible methods for confirming the existence of a biological relationship must be exhausted before recommending this course of action. Even then, DNA testing may only be recommended, but never required by the consular officer.

Consular officers may recommend DNA testing solely to prove a relationship; they may never recommend DNA testing in an attempt to disprove a relationship. Only DNA test results reporting a 99.5 percent or greater degree of certainty as proof of a biological relationship between a parent and child may be accepted in visa cases.

The Department clarifies that consular officers adjudicating Form I-130 Alien Relative petitions are not authorized to approve the petition if DNA test results are the sole evidence of the claimed biological relationship. Such cases are not “clearly approvable” per the provisions of 9 FAM 42.41 N4.2-3; accordingly, they must be forwarded to USCIS for adjudication. Parenthetically, USCIS is authorized to approve I-130 petitions supported solely on DNA testing.

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Most applicants that are married less than 2 years to a US citizen must file form I-751 to remove the conditions. The Immigration Marriage Fraud Amendments of 1986 (IMFA) contained a requirement to file a Petition for Removal of Condition during the 90-day period preceding the second anniversary of the noncitizen’s acquisition of resident status.

The petition is to be filed jointly by the U.S. citizen or lawful permanent resident spouse and the conditional resident (CR). IMFA also allowed for a waiver of the joint-filing requirement based on specified grounds if the joint petition could not be filed. The IMFA was modified in 1990 (IMMACT90), and broadened the grounds for filing a waiver of the joint-filing requirement.

Currently a conditional resident can obtain a waiver of the joint-filing requirement and can show that he or she qualifies on one of three distinct bases: (1) extreme hardship to the CR if removed; (2) a good-faith marriage that has been terminated (by means of divorce); or (3) a good-faith marriage during which the CR or child suffered battery or extreme cruelty at the hands of the spouse. The CR files the waiver on Form I-751.

US is finally joining the Civilized world as Obama lifts the 22 year long HIV ban on infected visitors coming to our country. Visitors who have HIV would be allowed to travel and immigrate to the United States.

The president signed the Ryan White HIV/AIDS Treatment Extension Act of 2009 at the White House Friday and also spoke of the new rules, which have been under development more more than a year.

The regulations are the final procedural step in ending the ban, and will be published Monday in the Federal Register, to be followed by the standard 60-day waiting period prior to implementation.

The November 2009 Bulletin brings mixed news. The State Department’s Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference “certain religious workers” category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. All individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

This Bulletin brings excellent advancement in the family immigration categories, especially in the Family 1st and Family 2A categories and, for Mexico, in the Family 3rd category, what a relief. Mexico advances to 1 May 1992. The Philippines advances one month to 22 October 1991.