Author: tancincowp

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Updates

USCIS Resumes Premium Processing Services for Many I-140 Petitions

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USCIS announced in late June that it will resume Premium Processing
Services for Form I-140, the Immigrant Petition for Alien Worker.
Effective June 29, 2009, the federal agency started again accepting
premium processing requests for Forms I-140 for EB-1 Aliens with
Extraordinary Ability, EB-1 Outstanding Professors and Researchers,
EB-2 Members of Professions with Advanced Degrees or Exceptional
Ability that are not seeking a National Interest Waiver, EB-3
Professionals, EB-3 Skilled Workers, and EB-3 Workers other than
Skilled Workers and Professionals.

Please note that premium processing services are not available for
Forms I-140 for cases involving EB-1 Multinational Executives and
Managers and EB-2 Members of Professions with Advanced Degrees or
Exceptional Ability seeking a National Interest Waiver.

Under USCIS’s Premium Processing Service, the agency guarantees that it
will either issue an approval notice or, if applicable, a notice of
intent to deny, a request for evidence, or open an investigation for
fraud or misrepresentation within 15 calendar days for all petitioners
that provide a $1,000 processing fee along with their I-140 petition.
If this 15-day period is not met, the processing fee will be returned
to the petitioner and USCIS will continue to process the request as
part of the Premium Processing Service.

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Global Pinoy

Students Must Have No Aspirations to Migrate

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As the start of the fall school year approaches, many intending students are applying for the appropriate visa to pursue their study in the States. Carolyne is scheduled for her visa interview in a couple of weeks. She was accepted in for an undergraduate study in Iowa but is anxious about his coming interview. She heard from her friend who was denied the student visa. What are the criteria for an applicant for student to successfully obtain the student visa to study abroad?

Where to Start

A prospective student may begin the process of obtaining the visa by first applying to a school abroad. The applicant must determine whether the school will issue the Form I-20 Certificate of Eligibility. This form certifies the admission of the student to a program of study and establishes eligibility for a student visa including financial ability to complete the course of study.

With the I-20 the applicant must then apply at the US Embassy consular section for the F1 visa before he or she may enter the United States.

Bonafide Student

Academic students are those seeking to enter the United States temporarily for the purpose of pursuing a full course of study at an established college, university or other academic institution. The visa for academic students is the “F1” nonimmigrant visa.

One of the many requirements of this visa is that the applicant must have a residence in a foreign country which he has no intention of abandoning. This means that students must have no aspirations of immigrating to the United States after their study. For this reason, consular officers ask rigorous questioning on the applicant’s long term educational and career goals, the extend of their ties to the home country, their sources of financial support and the ways they will apply the US education once they returned to the home country.

Rigorous questioning about student’s actual intent was addressed in a Department of State (DOS) cable. According to this DOS document, the alien plans on studying a subject for which there is no or little employment opportunity in his country of resident is not a basis for denying the visa. Consular officers are instructed to focus on the student applicant’s immediate intent instead of focusing primarily on his ties or long term goals. This directive makes sense considering that students are generally young and are just starting their careers. Some do not have plans except to obtain education from a US school to broaden their opportunities in the future.

It is not enough that a university or college in the US accepted the applicant to enroll in their institution. The burden of the applicant for student visa is to show that he does not have the dual intent of migrating to the US after studying. Failure to show that “student intent” only is the common ground for refusal of the visa.

Financial Support

Applicants for the student visas must have sufficient support either from their own funds or from other persons who have the legal obligation to support the student.  Sufficient finances to cover expenses means availability of funds not mere possession.            The co-sponsor who claims to support the prospective student must have present resources and a legal obligation to support. The requirement of financial support is to prevent the student visa holder from resorting to unauthorized US employment to maintain solvency while studying.

Employment opportunities while in school as a foreign student are limited. Some are incident to status or authorized by the designated school official. Those that are authorized employment are (1)on campus employment; (2)curricular practical training and (3) optional practical training related to the student’s major are of study. Off campus employment are based on severe economic hardship due to “unforeseen circumstances beyond the student’s control.

Coming in as a Tourist

The purpose for the issuance of a B1/B2 visa is for the individual to enter the US on a temporary visit or business. In the exercise of discretion, the US Citizenship and Immigration Service may still deny a change of status from tourist to student visa if it appears that the person entered the US on a tourist visa with a “preconceived” intent to attend school.

Changes of status to student visa are often viewed as circumventing the normal visa issuing process and are oftentimes denied. Unlike other denials, for those denied student visas the order for the student to depart is issued quickly or removal proceedings are initiated at a very short period of time prior to denial. For this reason, it may be an impractical option to enter as a visitor with the hope of changing the status to that of a student.

A Key Element in Foreign Relations

Incoming international students in the US have increased despite the global recession. It is a fact that the US still remains the favorite destination for international study. Interestingly, for outbound US citizen students wanting to study abroad the number had declined. Considering the growing trend of global education,applicants for student visas should increase their chance of obtaining the visas by meeting  the eligibility requirements. The consular officers are expected to exercise just discretion in adjudicating student visas and based their grant or denial firmly in law and regulation. For after all, enrollment of foreign students remains a key element in US foreign relations.

(Tancinco may be reached at law@tancinco.com or at 887 7177).

Categories
Updates

USCIS Notes that Current I-9 Form Will Remain Valid Past June 30

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USCIS announced today that the version of Form I-9, the Employment
Eligibility Verification form, currently on the USCIS Web site will
continue to be valid for use beyond June 30, 2009. USCIS has requested
that the Office of Management and Budget approve the use of the current
version of the Form I-9. This request is still pending, but during this
period, the current form, revised on February 2, 2009, will remain
valid.

USCIS notes that they will update the I-9 form when the extension is
approved by the Office of Management and Budget. Employers will then be
able to use either the newly revised form or the form currently
available (revised 02/02/2009).

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Updates

USCIS Posts Update of Cap-Subject H Visas Received

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USCIS has just posted an update regarding the amounts of petitions
received for visas in the H category that are subject to annual caps.

H-1B Visas

H-1B visas are available to some U.S. employers to use to bring foreign
workers in specialty occupations that require technical or theoretical
expertise in a specialized field. H-1B occupations include architects,
computer programmers, accountants and doctors, among other professions.
Each year, a total of 65,000 cap-subject H-1B visas are available to
such individuals.

According to USCIS, as of June 19, 2009, only 44,500 H-1B cap-subject
petitions and approximately 20,000 petitions that qualify for the
advanced degree cap exemption have been filed by U.S. employers. USCIS
notes that they will continue to accept petitions for both the
cap-subject and advanced degree categories until they have received
enough to adequately fill the Fiscal Year limit of 65,000 available
visas.

H-1B1 Visas

Citizens of Chile or Singapore coming to the U.S to work temporarily in
specialty occupations can enter the U.S. under the H-1B1 subcategory.
Each year, up to 6,800 of these visas are provided to residents of
these two countries. The cap for this category for Fiscal Year 2010 has
not yet been reached, according to USCIS.

H-2B Visas

H-2B visas are available for U.S. employers in industries with peak
load, seasonal or intermittent needs to bring in temporary workers to
assist their existing staff. H-2B workers typically work in areas such
as construction, health care, landscaping and manufacturing. A total of
66,000 H-2B visas are available per year; this number is split in half
and provided with employment start dates in either October or June.
USCIS has not yet begun receiving H-2B petitions for the upcoming half
Fiscal Year, but when they do begin their count, we will update you in
this news section.

H-3 Visas

H-3 visas are available for aliens wishing to come temporarily to the
U.S. to receive training that is not available in their home countries
(with the exception of graduate medical education or training). This
training is provided by either a business, academic or vocational
institute. In addition, aliens wishing to temporarily enter the U.S. to
participate in a special education training program for children with
physical, mental or emotional disabilities may also apply under this
category. Only 50 of these visas are allocated per fiscal year. As of
March 30, 2009, only three H-3 visas with an approved start date in
Fiscal Year 2009 have been approved.

Categories
Global Pinoy

Economic Downturn and Immigrants Hardships

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When Governor Arnold Schwarzenegger announced that there will be severe cuts in services because of the budget crisis in the State of California, almost all businesses were affected. Even the health care industry was severely distressed by the budget cuts. Most Americans whose health care was subsidized by the State will have to put up with the budget adjustments.
 
Aurora, a long time Filipino caregiver for 80 year old Mr. Smith, was recently terminated from her job since the family of Mr. Smith is no longer capable of paying for the home health care costs without additional subsidy from the State. Mr. Smith will have to be transferred to a home care facility. Aurora is now having difficulty finding a new job.

Health care workers are just one of the many groups affected by the economic crisis. There are many more immigrants and intending immigrants undergoing difficulties.

Financial Losses of US Businesses
   
Before the crisis, many businesses were flourishing and that several foreign workers were petitioned by US businesses to work in their enterprise. This year is different. In the past few years, the professional working H1B visas cap used to be reached in one day from the date of its availability on April 1. Many US employers then rushed to file H1B visas for their foreign workers before the cap is reached. In fact, the US Citizenship and Immigration Services return excess petitions after the cap is met by randomly selecting from all the petitions that are filed.
   
For this Fiscal Year 2010, when the H1B visa filing began on April 1, 2009, the number of petitions filed did not reach the cap yet. As of this writing there are still H1B visas available. According the US Citizenship and Immigration Service, there are approximately 45,500 H1B petitions received counting toward the Congressionally mandated 65,000 cap. This means that the USCIS is still accepting petitions for H1B visas. The fact that there are still available H1B visas this time of the year means that the economy is really bad that no US businesses are petitioning workers. It also means that the immigration policy of limiting visas by setting a cap on the number of visas is counterproductive because it is actually the economy that controls the flow of immigrant visas without need for restrictive immigration policy.

Petitioner’s Losing Jobs

For petitions by US citizens and lawful permanent residents for their immediate relatives, there are also repercussions in view of the current crisis. Many immigrants are losing their jobs, their homes and for some their health condition is affected by the hardships encountered.

In order to petition for a child, spouse or parent, the petitioner must have the financial capacity to support the relatives they are petitioning. With unemployment on the rise, many petitioners are not able to execute Affidavits of Support as part of the visa processing of their relatives. It must be emphasized, though, that even if the US citizen or lawful permanent resident is declared bankrupt, has bad credit, or is unemployed, the visa petition may still be filed and processed as long as there is a joint sponsor willing to execute the Affidavit of Support.

Changes in Hiring Policies

For health care professionals, especially registered nurses ,who are waiting for visas to become available, there are increasing number of instances where the US petitioner suffer financial reversals and are unable to hire future employees. Those who are waiting for retrogression to be lifted and are waiting for their visas to become available must check regularly with their petitioner or employer whether their job offer is still open. This will allow the beneficiary/registered nurse to take appropriate step of finding new petitioners in the event that there are changes in the circumstances of their present employer.

Timely Immigration Reform

Economic advisers to the Obama administration argue that, at this time, there are benefits of enacting legislation that will fix the current immigration system. Immigration reform is an economic necessity and a net gain to the US economy according to leading economists. The White House Council of Economic Advisors all recognize that immigration reform is an economic necessity that improves wages and working conditions for all workers, increases tax revenues for the government and enables newly legalized workers to spend more on American goods.

No one seemed to be spared from the economic downturn. The immigrants are severely affected because of businesses closing and petitioners’ losing their employment and are suffering financial difficulties. However, we all know that this is just a ‘temporary’ situation and soon the economic situation will improve. This economic crisis and its resulting hardship should be an eye opener to all including policy makers who will soon establish immigration policies that are more humane and compassionate in nature. There is still hope.

(Tancinco may be reached at law@tancinco.com or at 887-7177)
 

Categories
Updates

VWP Passports Must Now Be E-Passports

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According to the U.S. Customs and Border Protection (CBP), as of July
1, 2009, all Visa Waiver Program (VWP) emergency or temporary passports
must be electronic passports. Only individuals holding these
e-Passports will be able to travel to the U.S. under the VWP. Included
in this category are applicants who present for proof of identification
emergency or temporary passports. E-Passports contain integrated chips
that store biographic data, digitized photographs and other information
about the passport holders.

CBP notes that they have the right to exercise discretion at ports of
entry for cases in which VWP applicants are traveling to the U.S. for
medical or other “emergency” reasons. VWP applicants entering the U.S.
with passports that do not comply to this regulation (with the
exception of those that are traveling for emergency reasons and have
been given discretionary approval) may be detained for processing and
may potentially be denied admission to the U.S.

Categories
Updates

U.S. Justice Department Facing Highest Backlog of Immigration Cases in a Decade

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According to a report just published by the Transactional Records
Access Clearinghouse (TRAC), a nonpartisan group that conducts analysis
on the performance of the federal government, U.S. immigration courts
are facing major slowdowns. According to TRAC, even though the Justice
Department three years ago reported that U.S. immigration courts were
severely overburdened and called for the hiring of 40 new judges, only
a few judges have been hired and the reported backlog of immigration
cases has hit the highest level this decade. TRAC reports that the lack
of necessary judges has led to a 19 percent increase in case backlog
since 2006 and a 23 percent increase in the time it takes to resolve
cases.

In mid-April the Justice Department noted that there were 234
immigration judges practicing in the U.S., an increase of only 4 judges
since two years prior. At the same time, the number of immigration
cases received by U.S. courts peaked to exorbitant numbers; last year,
more than 350,000 cases were received, due in large part to the Bush
Administration’s crackdown on factories and immigrant communities in
the Midwest and Southwest regions of the country.

Charles Miller, a spokesman for the U.S. Justice Department, recently
commented that the Justice Department intends to hire 19 new
immigration judges. By 2010, they plan to have hired 28 more judges and
28 clerks.

Categories
Immigration Round Table

Widows of US Citizens Benefit from New DHS Directive

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Dear Atty. Lou,

I write to you on behalf of my aunt who was married to a US citizen. She met her husband while working in a health care facility. They married in October 2008 after knowing each other for one year.  My aunt is an overstaying visitor and has no valid immigration status.

On January 2009, my aunt’s US citizen husband filed a petition for immediate relative so that my aunt will get a green card. Unfortunately, her husband suffered a heart attack in March 2009 and passed away after two days. Now my Aunt received a letter in the mail from the US Citizenship and Immigration Service asking that she and her husband appear for the interview. Since my aunt is now a widow and she no longer has a petitioner, she is afraid that she will be arrested if she appears before an immigration officer.

Lately, we read on the news about the widows of US citizens and some immigration benefits. Does this mean that my aunt will get her green despite the fact that her petitioner spouse passed away already? Please enlighten us on this matter so that my aunt will be aware of her options. Thank you in advance for your response.

Katie in Arizona

Dear Katie,

A widow of a US citizen may self petition for green card despite the death of her husband as long as she has been married for at least two years and the self petition is filed within two years from date of the death of the spouse. In the particular case of your aunt, she has only been married for less than a year before your US citizen uncle died, hence, under current legislation, she is not eligible to apply for green card as a self petitioning spouse.

In one of the cases filed in California,  Freeman v. Gonzales (9th Circuit 2006), the court ruled that if the US citizen spouse died while the petition was pending, the petition could still be approved after the citizen’s death. Because of this ruling, many widows filed a reconsideration of their denied petitions. After this court ruling the US Citizenship and Immigration Service issued restrictive guidance against widows of US citizens resulting in many more denied cases of widow cases.

However, on June 9, 2009, the U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano came out with a new guidance where it granted deferred action for two years to widows and widowers of U.S. citizens—as well as their unmarried children under 18 years old—who reside in the United States  and who were married for less than two years prior to their spouse’s death.

Napolitano issued three directives: (1) for U.S. Citizenship and Immigration Services (USCIS) to suspend adjudication of visa petitions and adjustment applications filed for widow(er)s where the sole reason for reassessment of immigration status was the death of a U.S. citizen spouse prior to the second anniversary of the marriage; (2) for U.S. Immigration and Customs Enforcement (ICE) to defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children and (3) for USCIS to consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law. DHS will soon issue guidance instructing the public on how to apply for this relief.

Your aunt may take advantage of this recent DHS directive since she is one of the widows of the US citizens that will benefit from this deferred action by USCIS. It must be noted though that this is a temporary relief only and unless new legislation is passed, no permanent resident status shall be granted to widows who were married for less than two years.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)

Categories
SideBar

Will my Neighbor’s Home Foreclosure Affect me?

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A recent report by the Center for Responsible Lending, A consumer advocacy group, reports that homeowners who are concerned about the value of their homes should be concerned with foreclosures among their neighbors.

This year, millions of homes have suffered price declines due to nearby homes being foreclosed.  The decline in property value could total $500 billion.   

As the foreclosure crisis continues to worsen, property values of every home in the community are affected. It is no longer safe to just say that those foreclosures are hurting some else.  It affects every homeowner in the community.  Studies have shown that homeowners who lived within 300 feet of a foreclosed residential property experience drops of 1.3 percent in home values while those living 300 to 500 feet of the foreclosed home see drops in value of 0.6 percent. These drop in values affect the financial flexibility of the affected homeowners.  If the homeowners had counted on using the homeowner’s equity to finance their business, cover tuition fees, make purchases or pay their medical bills, these options may no longer be available.

This situation becomes worse when we talk of condo owners who have common areas and shared responsibilities. When people buy condos, they expect their monthly fees to cover many of the responsibilities that would otherwise fall on single-family homeowner like: maintaining the lawns, paying for common-area utility bills, security, painting fences and so on.   The downside, however, to owning a condo is that your fate is tied with maybe 100 other condo owners a number of whom may already be in foreclosure proceedings and who may no longer be making their monthly fees.     

Same with single-family homeowners, many condo owners are also facing foreclosure problems.  The number of condos being foreclosed on a condo association greatly affects the valuation of all the remaining condos in the property.   Moreover, when a condo owner faces foreclosure, that person may also stop paying the monthly fees.   This results in a shrinking collection of monthly dues from condo owners. The condo associations are then forced to defer maintenance of common areas: paints are peeling, roofs are leaking, lobby is not maintained, security may be reduced, grasses don’t get cut, batteries for smoke alarms may not be replaced, and so on.  The whole condominium property then becomes less desirable and results in individual condos not being not being as attractive thus contributing to the downward spiral in the valuation of these properties.

You, as a homeowner, may need to beware of your neighbor’s home foreclosure so that when it comes to selling your house or planning for your next home, it may be necessary that you be a nosey neighbor.