World Journal Weekly on August 27, 2006 Published Mr. Lee's Article "Little Immigration Points That Not Everyone Knows"

By Alan Lee, Esq.

Sweltering in the second serious New York City heat wave of 2006 (estimated temperature today103-107 degrees), I decided to write an article on some items in immigration that may not be commonly known, but may be critical in the processing of an immigration case. Sometimes knowing points like these ahead of time can even allow a lawyer to shine in the eyes of his or her clients.

1 The American consulate in Guangzhou does not want to hear in marriage or fiancee cases that the parties do not have evidence of continual communications with each other because the petitioner uses a phone card since they are much cheaper. The burden of proof is upon the visa applicant to show entitlement to the immigrant visa through proof of a bonafide relationship. Evidence of communication between the parties is critical to this determination. The consulate's appointment interview sheet (which applicants receive just prior to interview) states that "calling cards, without an itemized list of calls made using these cards, will not be accepted." While it is undoubtedly cheaper to use calling cards, persons who are petitioning for overseas spouses and fiancees should ensure that they will have a record of calls made during the course of the relationship.

2 For individuals entering the United States with immigrant visas who do not receive their permanent residence cards within a reasonable period of time, they can check the status of the unreceived cards by inquiring online at "tsc.card push@dhs.gov". This is a much quicker method of discovering the status of the green cards than writing to/calling the U.S.C.I.S.. In our last use of the e-mail address, we received information on the green card production within a few days of our query.

3 There is an exception to the H-1B cap for persons working at an institution of higher learning, related or affiliated nonprofit entity, nonprofit research organization, or governmental research organization. Although the H-1B cap has been reached and (barring changes of legislation) no new H-1B workers will be allowed to begin work until October 1, 2007, this prohibition does not impact qualified individuals who will be working at these institutions. The applicable word is "at", because an individual can be employed by a private firm and posted "at" the qualifying institution. For example, a doctor working for a private group on practical training is still eligible for H-1B status now if he/she will be practicing "at" a nonprofit hospital affiliated with a college or university. It should be noted though that the June 6, 2006 , interoffice memo of Michael Aytes, Associate Director for domestic operations of U.S.C.I.S., limited H-1B benefits to those in this group with job duties "that directly and predominantly further the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution." In a further example provided in the memorandum, an H-1B cap exemption was approvable for an applicant who would be devoting 55% of the time at the qualifying site. Knowing the rule and its confines should assist some individuals in obtaining H-1B visas in this time of H-1B drought.

4 The 5/25/06 Nebraska Service Center/Asylee-Refugee Products Conference Call posed a very interesting situation of an I-730 (Refugee/Asylum Relative Petition) follow to join asylum case in which the child was unable to come to the United States until seven years after (the I-730 was filed timely), and entered the U.S. illegally. The Nebraska Service Center stated the solution as informing the consul that the child was in the United States and return the petition to the Nebraska Service Center which would then schedule the interview and if everything was all right, the Nebraska Service Center would amend the approval notice. Nebraska asked the enquirer to contact the Center once the consul confirmed that the petition had been returned. This response was unusual enough that I thought to pass it on to readers who may think that they have similar situations.

5 When is an individual considered inspected when entering with a false passport? In the American Immigration Lawyers Association (AILA) New York Chapter/ District Director Liaison Meeting of 5/17/06, the District answered that the adjustment of status section might consider a person inspected with a false passport as long as the passport had the person's name, photograph, and date of birth. In that case, the applicant might need an I-601 Application for Waiver of Grounds of Inadmissibility. This has the potential for allowing individuals to adjust status in the States who would otherwise be barred from such even if married to U.S. citizen because they entered the country illegally and do not qualify under section 245(i). In the latest version of section 245(i), aliens physically present in the U.S. on 12/21/00, who either applied for a labor certification or immigrant visa petition by April 30, 2001, are allowed to pay a fine amount to the U.S.C.I.S. for the privilege of being allowed to interview in the States. The ability to adjust status is extremely important because persons entering illegally and remaining in the U.S. for one year after 4/1/97 are barred for 10 years from re-entering the U.S.. Therefore they do not have the option of consular processing their cases.

6 As per the AILA /Nebraska Service Center Students and Schools conference call of 7/27/06, there will be no "cap-gap" extension of F-1 stay for this year. As readers may recall, legacy INS had a liberal policy of allowing F-1 and J-1 students filing for H-1B changes of status (whose practical training period even with the grace period did not extend until October 1st, the opening day of the new fiscal year when H-1B numbers again become available) to remain but not work in the interim. The last time that a cap-gap extension was allowed was July 23, 2004. The choices now facing H-1B applicants caught up in this situation are either to extend student status, change to some other status, or leave the U.S. now or at some later date to interview for H-1B visas at American consulates or embassies. F-1 and J-1 students who were hoping that DHS would allow them to stay while in the gap should make final decisions on their courses of action. One must wonder, however, what drives DHS's decision? Is it concern over national security that compels DHS not to allow the students to remain and do nothing during the weeks or months that they would be in the gap? If this is a concern, could it not be solved by rulemaking to automatically extend practical training to October 1st for students who apply for timely H-1B changes of status and are caught in the gap? Does it make economic sense to the U.S. to have students stop work and leave employers in a lurch or have the students spend their U.S. dollars earned during practical training on foreign airlines and in their home countries when they could be spending the money here? We would encourage DHS to reevaluate the pros and cons of its decision.

7 What are the choices facing green card holders with expiring 10 year cards who have committed crimes during their years of permanent residence? To obtain a new card, applicants must fill out an I-90 application to replace permanent residence card with fee and take biometrics at an application support facility of U.S.C.I.S. in which fingerprints are taken. The subject of I-90 filings and crimes has come up recently between AILA in Chicago and the District Director. The genesis appears to have been the Chicago office's decision to issue Notices To Appear (NTAs) instead of notices of intent to revoke permanent residence and only after a final negative decision there to place individuals in removal proceedings. (An NTA is the charging document to place aliens in removal proceedings). From the AILA minutes of the late July meeting with the District Director, U.S.C.I.S. in Chicago now agrees that I-90 applications should not be denied because applicants have criminal convictions which may be a basis to rescind the permanent residence status. If criminal records are requested in a Referral for Further Evidence (RFE) following an I-90 filing and are not submitted, the I-90 will be denied for lack of prosecution and not because of conviction. (Perhaps the abandonment of an I-90 application will result in no further action by DHS). The Director also agrees that an I-90 applicant remains a permanent resident until the immigration judge and/or the Board of Immigration Appeals finally decides the matter pursuant to an NTA. We will keep our ears open for further developments on this topic.

The above are some points that I thought interesting, and hopefully our readers are of a similar mind.



The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2006 Alan Lee, Esq.

 

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