Visa Lawyer Blog

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Aliens who married or had children before the date of obtaining permanent residency can possibly confer “following-to-join” benefits to their family members. Due to this process, spouses and children will be able to receive green cards quickly. “Following-to join” is not family based immigration, but is similar to a child/spouse receiving derivative benefits based on a primary LPR’s immigration petition.

Here are the following requirements to be met in order for a spouse or child to qualify under “following-to-join”:

1. The LPR must have adjusted status or obtained an immigrant visa through a preference category (family or employment based) or diversity lottery. A LPR’s visa number must also be current in order for a family member to receive “following-to-join”.

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I met with a new client in my office the other day, he presented to me a Notice of Intent to Rescind his status by USCIS. The Service alleges that he is subject to rescission, because he was not living together with his wife at the time of the adjustment interview, and that he had lied about their living arrangements to the interviewing USCIS officer. What can one do in this situation?

The first analysis that comes to mind is Matter of McKee, 17 I & N Dec. 332 (BIA 1980). In Matter of McKee the Board of Appeals held that a visa petition could be approved, even though the parties had separated and the marriage was no longer viable, as long as the marriage was bona fide at inception, and had not been terminated. This is a key point even today and many USCIS officers seems to ignore this concept.

In another case, Matter of Boromand, 17 I&N. Dec. 2811 (BIA 1980), The Board reviewed the evidence and concluded that it did “not appear that the respondent married” his United States citizen wife for the “sole purpose of evading the immigration laws. Based on this finding, the Board concluded that the adjustment could not be rescinded, based on the charge that he had materially misrepresented his living arrangements with his wife at the time of the adjustment interview.

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The American Competitiveness and Workforce Improvement Act (ACWIA), imposes annual reporting requirements on U.S. Citizenship and Immigration Services (USCIS) concerning the countries of origin and occupations of, educational levels attained by, and compensation paid to, aliens who were issued visas or otherwise provided nonimmigrant status under H1B Visas during the previous fiscal year.

Here are some highlights from the report submitted by USCIS earlier this year:

• The number of H-l B petitions filed decreased 15 percent from 288,764 in Fiscal Year

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Seems like Nebraska is following in the steps of Arizona. Voters in eastern Nebraska will decide today whether to ban hiring or renting property to illegal immigrants. The vote will be the culmination of a two-year fight that saw proponents collect enough signatures to put the question to a public vote. If the ordinance is approved, the community of 25,000 people could face a long and costly court battle. Either way, the emotions stirred up won’t settle quickly.The vote will be the culmination of a two-year fight that saw proponents collect enough signatures to put the question to a public vote. If the ordinance is approved, the community of 25,000 people could face a long and costly court battle. Either way, the emotions stirred up won’t settle quickly.

From about 165 Hispanics — both legal and illegal — living in Fremont in 1990, the total surged to 1,085 in 2000, according to census expert David Drozd at the University of Nebraska at Omaha. He said an estimated 2,060 Hispanics lived there last year. In May, Fremont recorded just 4.9 percent unemployment, in line with the statewide rate and significantly lower than the national average of 9.7 percent.

If approved, the measure will require potential renters to apply for a license to rent. The application process will force Fremont officials to check if the renters are in the country legally. If they are found to be illegal, they will not be issued a license allowing them to rent.

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A great tip from AILA to share with our readers regarding the H1B visa. It seems that H-1B petitions for Speech Language Pathologists (SLP) and similar related occupations are being closely monitored to ensure that accurate job duties are being identified to confirm CGFNS (Commission on Graduates of Foreign Nursing Schools) certification requirements.

There are multiple progressive occupations within the Speech Language Pathology career field including, Teachers of Speech and Hearing Handicapped (TSHH), Teachers of Speech and Language Disabilities (TSSLC), Speech Language Pathologist Assistants (SLPA) and Clinical Fellows (CFY), and Speech Language Pathologists (SLP).

While all of these positions require a state license, only SLPs who are certified by the American Speech-Language-Hearing Association (ASHA) may provide direct patient care without supervision, and thus, only certified SLPs require CGFNS certification.

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As PERM processing becomes faster in recent months, icert problems continue though. DOL has reported that the incorrect error message that pops up upon entering a date for the prevailing wage source is the result of recent system edit. The glitch will not affect useability, i.e., users can bypass the error message and submit LCAs for processing. In addition, a fix is in development and will likely be in place today or tomorrow. Common recent problem is receiving an inappropriate system warning when entering the Prevailing Wage source. We hope these problem will be fixed soon as the PERM process becoming rather annoying. We will keep our readers posted.

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U.S. Citizenship and Immigration Services (USCIS) announced today that a new version of the Application to Replace Permanent Resident Card (Form I-90), is available on the USCIS website. The new version of the form is dated 8/10/09 and contains more user-friendly features.

Applicants may file Form I-90 electronically (through e-filing), or through the mail to the USCIS Phoenix Lockbox facility.

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The U.S. Department of State released the new visa bulletin for July 2010 on June 10, 2010.

For the month of July, the EB-1 category remained current for both Chinese and Indian nationals. In the EB-2 category, cut-off dates stayed the same for Chinese nationals (November 22, 2005), but moved forward eight months for Indian nationals from February 1, 2005 to October 1, 2005. In the EB-3 category, dates moved forward from June 22, 2003 to August 15, 2003 and from October 22, 2001 to November 22, 2001 for Chinese and Indian nationals respectively
For the month of June, the EB-1 category was current. In the EB-2 category, dates moved forward for mainland Chinese nationals from September 22, 2005 to November 22, 2005 and remain unchanged for Indian nationals (February 1, 2005). In the EB-3 category, dates moved forward for both mainland Chinese nationals from April 22, 2003 to June 22, 2003 and Indian nationals from October 1, 2001 to October 22, 2001.

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It was announced today that U.S. Citizenship and Immigration Services (USCIS) will seek an average 10% increase in immigration fees in order to close a projected $200-million deficit for 2010-11. According to USCIS, budget cuts of $160 million were not enough to offset the gap between the agency’s projected $2.1 billion in revenue and $2.3 billion in costs.

“Many of the government expenses being underwritten by these fees are unrelated to the services for which fees are being paid. These are matters of public benefit, and should be funded by appropriations, not applicants,” said AILA President Bernard Wolfsdorf. “While a 10% fee increase in and of itself may not seem high, this comes only 3 years after a 66% USCIS fee increase. Taken together, these increases bring many fees to excessive levels,” Wolfsdorf continued.

One positive aspect of the proposal is that it would not increase fees for citizenship applications. Those fees were hiked by 70% to $675 in 2007, an increase that immigrant-rights groups blamed for putting citizenship out of reach for many lower-wage immigrants. Most clients and lawyers are not happy at all with this announcement.

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USCIS is launching a pilot program in July 2010 that will use Dun & Bradstreet databases to verify business information of employers who submit immigration related petitions. “Verification Instrument for Business Enterprises” (VIBE) is a tool intended to help combat immigration fraud, and to minimize RFE’s regarding petitioners’ business data and eventually to make submission of routine documentation unnecessary.

VIBE will be used to verify a petitioner’s ownership, date of establishment, current address, number of employees, business activities, and relationship with other entities, etc. In case of discrepancies between VIBE and the information contained in a petition, the employer will given an opportunity to explain the discrepancy. The full implementation of VIBE is expected to take place later in the year 2010. We are advising all corporate clients to verify and keep updated their D&B information.