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.
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