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Can I get a new visa in Mexico?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I came here on an F1 Visa and later applied for a change of status to H-1B. However, I have been told that if I go back to the Philippines, that I must have an interview at the U.S. Embassy in the Philippines which could be denied (even though I was approved for the change of status.) Is there any way to get a visa in Mexico without having to go through the interview process in the Philippines?

Answer: There are several qualifications to be able to go to Mexico. Applicants seeking to renew their C1/D, D, F, H, I, J, L, M, O, P and R visas, if the initial visa was issued in the applicant’s home country or at one of the border posts in the past few years.

Applicants for visas that reflect a change of status (e.g., F1 to H1B or F1 to J), provided the applicant originally entered the US in other than B status and possesses an original change of status notice (I-797) from the Department of Homeland Security.

Applicants possessing B visas issued in their home country with annotations showing intent to change visa status, such as “Prospective Student.”

Question: Who Cannot Apply in Mexico?

Answer: Applicants who entered the U.S. with a B visa issued in their home country that changed status to another visa category, e.g., F, J, H1B, but the visa did not have an annotation indicating intent to change status.

Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.

A, B, E, G and Q visa applications, including renewals are not accepted from Third Country Nationals (TCN) that are not resident in the appropriate consular district.

Citizens of Iran, Sudan, Libya, Iraq, North Korea, Cuba and Syria.

Question: How can I go about making an interview appointment.

Answer: You can actually make it online at the website available 24 hours a day, 7 days a week at http://www.visa-usa.com.mx. In order to use the service the applicant must purchase a PIN for US$10.00 payable by Visa or Mastercard. Please note that the PIN will expire 10 days after the appointment date. If an appointment is not scheduled, the PIN will expire 90 days after purchase. The PIN provides for 3 scheduling opportunities so that an applicant can schedule an appointment and reschedule it up to 2 additional times if necessary. Appointments cannot be changed or cancelled within 5 business days of the appointment date.

For further information the US Embassy Mexico Customer Service Center is available Monday through Friday from 7am to 9pm Central and Saturday and Sunday from 9am – 3pm Central. There are several payment options for accessing the Customer Service Center, including a new option to pay by Visa or MasterCard via a toll-free number from the United States which is 1-900-476-1212 with a cost of US$1.25 per minute.

 

Filed under: H-1B, Immigration Law, immigration provisions, Third Country National (TCN), USCIS | Tagged: , | Leave a comment »

I have been beaten by my husband. Now what?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been beaten by my husband and he never petitioned me. He was a lawful permanent resident, but was deported and now has no status. I really did love him at some point in the past. Is there something I can do?

Answer: You do not have to stay in this relationship and there is something you can do. There is a petition known as the self-petitioning battered spouse provision. Parts of the law providing help in this regard come from provisions of the Immigration and Nationality Act (the Act) by the Victims of Trafficking and Violence Protection Act (VTVPA). Title V of the VTVPA is entitled the Battered Immigrant Women Protection Act (BIWPA), and contains several provisions amending the self-petitioning eligibility requirements contained in the Act.

Question: However, my husband was deported and no longer has legal status in the U.S. Can I still file this petition?

Answer: As long as the petition is filed within two years of when your husband lost his status, you are still eligible to file the petition. For example, if your abusive husband has died, the spouse or child of a U.S. citizen who died within the two years immediately preceding the filing of the self-petition may benefit from the self-petitioning provisions for abusive United States Citizens.

Assuming this is not a case dealing with the death of a USC, you must demonstrate that the abuser’s loss of status was related to or due to an incident of domestic violence, and that you file your self-petition within two years of the loss of status. Thus, in your case, since your husband was deported most likely because of the domestic violence, there would not be a problem filing this petition. You should provide the circumstances surrounding the loss of status; the requisite causal relationship between the loss of status and the incident of domestic violence; and that the loss of status occurred within the two-year period immediately preceding the filing of the self-petition.

Similarly, divorce from an LPR or loss of LPR status by an LPR abuser after the filing of the self-petition shall not adversely affect the approval of the self-petition, nor shall it affect the ability of an approved self-petitioner to adjust status to that of an LPR.

Question: When must I file the application?

Answer: Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident must be filed within Two Years of the Abuser’s Loss of Status.

Question: What must I provide and what evidence is necessary to be able to file this petition?

Answer: A self-petitioning spouse or child must demonstrate that his or her abusive spouse or parent is or was a U.S. Citizen (USC) or Lawful Permanent Resident (LPR). A self-petition filed by a battered spouse or child must be accompanied by evidence of citizenship of the U.S. citizen or evidence of the immigration status of the lawful permanent resident abuser. Self-petitioners are encouraged to submit primary evidence whenever possible, although adjudicators will consider any relevant credible evidence. USCIS regulations provide detailed information concerning the primary supporting documentation needed as evidence of a petitioner’s U.S. citizenship or lawful permanent residence. Self-petitioners can submit evidence of a spousal relationship to a USC or LPR. Evidence should include a birth certificate issued by a civil authority that shows the abuser’s birth in the United States; The abuser’s unexpired U.S. passport issued initially for a full ten-year period to a citizen of the United States; The abuser’s expired U.S. passport issued initially for a full five-year period to a citizen of the United States who was under the age of 18 at the time of issuance; A statement executed by a U.S. consular officer certifying the abuser to be a U.S. citizen and the bearer of a currently valid U.S. passport; The abuser’s Certificate of Naturalization or Certificate of Citizenship; Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the abuser; and the abuser’s Form I-551 Alien Registration Receipt Card, or other proof given by USCIS as evidence of lawful permanent residence.

Question: What is I cannot find evidence that my husband was a Lawful Permanent Resident?

Answer: If primary evidence is unavailable, the self-petitioner must present secondary evidence. Any evidence submitted as secondary evidence should be evaluated for authenticity and credibility. If a self-petitioner is unable to present primary evidence or secondary evidence of the abuser’s status, the officer will attempt to electronically verify the abuser’s citizenship or immigration status from information contained in DHS computerized records. Other DHS records may also be reviewed at the discretion of the adjudicating officer. It is ultimately, however, the self-petitioner’s burden to establish the abuser’s U.S. citizenship or immigration status. If USCIS is unable to identify a record as relating to an abuser or the record does not establish the abuser’s immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.

Thus, if your spouse or parent is abusing you, there is no need to stay. You are able to file a self petition to help yourself and to get status by yourself.

Filed under: Battered Spouse, Immigrant Visa, Immigration Law, Self-Petitioning - Battered Spouse, USCIS | Tagged: , | Leave a comment »

What is Registry?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been in the U.S. for over 30 years. I’m illegal here, but cannot seem to find a way to get my status. Is there anything I can do?

Answer: If you have been present in the United States since January 1, 1972, you may be eligible for the “registry” provisions of our immigration laws which would allow you to obtain lawful permanent residence even if you are illegally in the United States now, or if you initially entered the U.S. illegally.

Question: Where Can I Find the Law?

Answer: The part of the law concerning the registry provisions is located at INA §249. The specific eligibility requirements and procedures for becoming a permanent resident through registry are included in the Code of Federal Regulations (CFR) at 8 CFR 1259 .

Question: Who Is Eligible?

Answer: You are eligible to apply for permanent residence based on 8 CFR 1259 if you: Entered the United States prior to January 1, 1972; Have continuously resided in the United States since entry; Are a person of good moral character; Are neither ineligible for citizenship, except for the requirement of five years of lawful permanent residence, nor inadmissible for participation in terrorist activities, certain criminal or security grounds, or for alien smuggling and never participated in Nazi persecutions or genocide.

Any alien who has at any time engaged in terrorist activities is ineligible for registry. Further, any alien who fails to appear at a removal hearing, or who fails to depart after agreeing to voluntary departure, is ineligible for registry for a period of ten years.

Question: How Do I Apply?

Answer: You must submit a completed Form I-485 with filing fee, and a completed Form G-325A with evidence that you have continuously resided in the United States prior to January 1, 1972, to the USCIS district office having jurisdiction over the place in which you live. You must establish that you are eligible and that registry should be granted in the exercise of discretion. There is no appeal from the decision of the District Director but your application may be renewed in front of an Immigration Judge.

Question: Will I Get a Work Permit?

Answer: Applicants who are inside the United States and have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) are eligible to apply for a work permit while their case is pending. You should use Form I-765 to apply for a work permit.

You do not need to apply for a work permit once you are accorded permanent resident status. As a lawful permanent resident, you should receive a permanent resident card that will provide evidence that you have a right to live and work in the United States permanently.

Question: Can I Travel outside the United States while I am waiting for my application under the registry provision to be processed?

Answer: If an alien obtains Advance Parole from the USCIS following approval of a Form I-131, he or she may travel outside of the United States and return without jeopardizing their registry application. However, any alien who has accrued more than 180 days of unlawful presence in the United States and then travels outside the United States is inadmissible for a period of 3 to 10 years. Registry applicants have, by definition, accrued long periods of time in unlawful status. If you are applying for permanent residence using the section 249 registry provisions, you should not travel outside of the United States without first obtaining advance parole from the Service, or you will be unable to return to the United States.

Filed under: Advance Parole, Immigration, Immigration Law, Registry, USCIS | Tagged: , | Leave a comment »

The New Year’s Hope for Immigration

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have been fighting my case for some time and yet do not have anything. What can I do?

Answer: As the year comes to an end, you need to try to give thanks for what you do have and then start again after the New Year. I am sure that you can appreciate and understand that practically everything is getting more difficult at Immigration. Whether your case is in Immigration Court, on Appeal to the Board of Immigration Appeals or the Circuit Courts or in front of USCIS, things are taking longer. Whether you have a Labor Certification or are applying for a Religious Visa, or a multitude of other types of visas, everything has gotten harder. Whether you are applying for a particular kind of Waiver or relief in Immigration Court, the evidence needed to present is much more than it used to be.

Therefore, you must keep fighting and you must keep your hopes up high. No matter how hard it is to get what you want from Immigration, you can always make a better case than before and you can always submit more evidence. We as a people cannot let the forces at Congress, USCIS, BICE, BCBP, and DOL or any other government agency drive immigrants and nonimmigrants away. If we permit the forces against the natural flow of immigration to win, then the United States will become the opposite of a land of dreams. It will become a land that will become unwelcoming.

As an immigration attorney, I am committed to keeping the fight going. Since IIRAIRA passed in 1996, lawyers across the U.S. have fought against provisions that were hurtful and spiteful to immigrants. Slowly, bit by bit, we have had successes to show that certain parts of legislation aimed against immigrants were unfair or unconstitutional. Now, there are more cases in Circuit Courts across the U.S. that are immigration related than ever before. The Circuit Courts are inundated with immigration cases because we must keep appealing and keep fighting what are laws that are aimed to deprive the immigrant of their dreams. If we give up, then we are validating the unfair laws, the discrimination, and the laws that will keep immigrants out of the U.S.

Therefore, do not despair that it is taking a long time to resolve your visa or your status. Keep in mind that there are multitudes of people in a much worse situation than you. There are people whom did not have anyone to fight for them and have been deported; had their appeals denied; had their Labor Certifications denied or had their relief denied. However, as long as you have an immigration attorney fighting for you, keep up your hope. It is only the fighting by that immigration attorney and other immigration attorneys across the country that will eventually prevail against antiquated laws and the discrimination against immigrants that exists by some of Congress.

It is almost New Year’s. Let’s give thanks for our health and our family. Let’s give thanks that we are still in the U.S. fighting to stay and fighting to get what is deserved. Let’s look at the people who did not win and hope that someday they have a successful return to the U.S. Hope is a powerful emotion and all of us can have hope to get what we eventually want.

I would like to wish all of my readers a Happy and Prosperous New Year’s and a hope that next year will give each and everyone of you prosperity and happiness.

Brian D. Lerner is an Immigration Attorney Specialist. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling    (866) 495-0554    or    (562) 495-0554   . The Firm website is www.californiaimmigration.us.

Filed under: Congress, Immigration, Immigration Law, immigration provisions, USCIS | Tagged: | Leave a comment »

I AM A PERMANENT RESIDENT… HOW DO I…GET A RE-ENTRY PERMIT?

Posted on December 15, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I need to leave the U.S. and am wondering if there is anything I need to do. Can you help?

Answer: As the Holiday Season approaches, it is important for Permanent Residents to review the rules and regulations regarding travel outside of the United States and proper procedures for obtaining a Reentry Permit. A re-entry permit can help prevent two types of problems: (1) Your Permanent Resident Card becoming technically invalid for re-entry into the United States (U.S.), if you are absent from the U.S. for 1 year or more. (2) Your U.S. permanent residence being considered as abandoned for absences shorter than 1 year, if you take up residence in another country.

A re-entry permit establishes a presumption that you did not abandon status, and it allows you to apply for admission to the U.S. after traveling abroad for up to 2 years, without having to obtain a returning resident visa. Re-entry permits are normally valid for 2 years from the date of issuance.

You may also want to get a re-entry permit if you plan on traveling outside the U.S. and cannot, or do not wish to get a passport from your home country. Many countries throughout the world may allow you to use a re-entry permit much like you would use a passport–placing necessary visas, and entry and exit stamps in the permit–so you may use it as your main travel document. Be sure to check with the country(ies) you plan on visiting about their requirements before you travel.

Question: What will happen if I do not apply for a re-entry permit before I travel outside of the U.S.?

Answer: If you are a permanent resident who plans to travel outside of the U.S. for one year or more, it is important that you apply for a re-entry permit before you depart the U.S. If you stay outside of the U.S. for one year or more and did not apply for a re-entry permit before you left, then you may be considered to have abandoned your permanent resident status and may be refused entry into the U.S. if you try to return. If you are in this situation, you should try to apply for a returning resident visa.

Question: Can I apply for the re-entry permit and then leave, even though I don’t have the re-entry permit in my possession yet?

Answer: U.S. immigration law does not require that you have the re-entry document in your possession when you depart, but it does require that you apply for the permit before you leave the U.S. It is possible to send your re-entry permit to the U.S. Consulate or Embassy in the country you plan on visiting, but you’ll need to specifically request this when you file your I-131. If you choose this option, you should contact the U.S. Consulate or Embassy in the country you plan on visiting when you arrive, to let them know how to contact you while you are in that country. The U.S. Consulate or Embassy may then contact you if your application is approved and your permit has arrived there.

If you are planning to use the re-entry permit as a passport, then you will need to wait for it before leaving the U.S. If you cannot wait, you may want to contact the consulate of the country you are planning to visit to find out if you can use other documents to enter.

Question: How do I get a re-entry permit?

Application: If you want to get a re-entry permit, file Form I-131, Application for Travel Document. You should file this application well in advance of your planned trip.

Filed under: Immigration Law, immigration provisions, LPR, Re-entry Permit, USCIS | Tagged: , | 1 Comment »

Are H-1B’s and H-2B’s used up yet?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I have heard that H-1B’s and H-2B’s are going quickly. Are they used up yet?

Answer: The DHS recently published numbers of H-1B’s and H-2B’s currently used. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000. It appears that for non advanced degree holders, the cap of about 58,000 has approved over 22,000 and has about 30,000 pending. This means there are only about 5,000 left. You should get your H-1B in right away.

However, if you have an advanced degree, there was an extra 20,000 H-1B’s allocated. For the rest of the 2005 fiscal year, there have been about 10,300 that have been approved. Thus, there is still a reasonable amount left. For the fiscal year of 2006, there have already been about 8,000 used up.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Of the 35,000 left until October 1, 2005, about 16,000 have been used. There have only been about 300 used up for the first half of 2006. Therefore, there seems to be quite of bit of H-2B’s left.

Question: Do you think there is any problem with filing an H-1B or an H-2B at this time?

Answer: You never know how soon all of the visas will be used up. There are people across the U.S. who are aware that there is a limit on these visas and are trying to get their visas in right away. Therefore, you should have your visa petition prepared right away to ensure you get in this years allotment. All kinds of status problems could occur if the allotment is used up and your stay in the U.S. expires afterwards.

Question: Should we file the H-1B and/or H-2B with premium processing?

Answer: Definitely. You never know if your application will be filed one after the last one. Therefore, to ensure your chances, pay the $1,000 premium processing fee and have peace of mind.

Filed under: H-1B, H-2B, Immigration, Immigration Law, USCIS | Tagged: , | Leave a comment »

Why can’t I file My Adjustment?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have just filed under the PERM program and it was very fast. In fact, it only took two weeks after filing. Now I was prepared to file for my Adjustment of Status application, but am told I cannot. What is going on?

Answer: The U.S. Department of State (DOS) has released its monthly Visa Bulletin for July 2005. This is a document which tells us which categories of employment based visas are current and which are not current. It basically lets us know what the processing priority date is. As of July 1, 2005, the third employment-based immigrant visa categories for professional workers, skilled workers, and unskilled workers will have reached their annual limits, and no further allocations of visas in these categories will be possible for citizens of any country through the end of 2005 fiscal year (FY 2005), which ends on September 30, 2005. With the start of the new fiscal year on October 1, 2005, immigrant visas will once again become available in these categories, but it is not possible to predict at this time what cut-off dates the DOS will impose. When retrogression occurs, the adjustment can no longer be filed.

Question: So what is the priority date that is being processed?

Answer: Note that through June 30, 2005, the cut-off date for professional and skilled workers is June 1, 2002; the cut-off date for unskilled workers from all countries is January 1, 1999. This means that you would have needed a Labor Certification priority date before that time. As of now, those categories are ‘U’ or unavailable.

Basically, individuals approved I-140 petitions in the third employment-based preference category for professional and skilled workers may apply for adjustment of status to permanent residence or for immigrant visas through June 30, 2005 only if their priority dates were before June 1, 2002. Adjustment applications received at a U.S. Citizenship and Immigration Services (USCIS) service center on or before June 30, 2005 with the above met criteria are fine. Concurrent filings of the I-140 and adjustment applications were also permissible through June 30, 2005, provided the individual has a current EB-3 priority date for which an I-140 petition has not yet been filed. Again, such cases must have been received at the service center by June 30, 2005.

Question: What happened after June 30, 2005?

Answer: After June 30, 2005, the USCIS will reject all I-485 adjustment applications for third preference workers unless they are for occupations on the Department of Labor’s Schedule A. Individuals who are applying for immigrant visas abroad must have obtained their visas by June 30, 2005.

Recent legislation provided for the recapture of 50,000 employment-based immigrant visa numbers that were unused in FY 2001 through FY 2004. Such numbers are to be made available to employment-based immigrants described in the Department of Labor’s Schedule A and their accompanying spouses and children. Schedule A applies only to professional nurses, physical therapists, and certain aliens of exceptional ability in the sciences or arts. The Schedule A category is now current, meaning that immigrant visa numbers are available to Schedule A workers. The DOS estimates that immigrant visa numbers for Schedule A beneficiaries should be unaffected by the lack of professional and skilled worker EB-3 numbers for the foreseeable future.

With regard to properly filed adjustment applications (whether filed alone based on an approved I-140 petition or concurrently filed with an unapproved I-140 petition), such applications will be held in abeyance for the foreseeable future once EB-3 numbers retrogress on July 1. However, applicants will be entitled to employment authorization documents (EADs) and advance parole while their adjustment applications remain pending.

Filed under: Immigration Law, immigration provisions, PERM, Retrogression, USCIS | Tagged: , | Leave a comment »

Are H-1B’s gone yet?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a Masters Degree in Business Administration and want to obtain an H-1B. Are they all used up yet?

Answer: The U.S. Citizenship and Immigration Services (USCIS) announced on May 24, 2005, that it has received approximately 6,400 H-1B petitions that will count against the Congressionally-mandated 20,000 cap exemption for fiscal year 2005 established by the H-1B Visa Reform Act of 2004. This would be for people with advanced degrees (not the normal type of H-1B.) The USCIS published an interim final rule on May 5, 2004, implementing the new H-1B cap exemption for foreign nationals holding U.S.-earned advanced degrees, pursuant to the H-1B Visa Reform Act of 2004. The Act exempts 20,000 H-1B visa numbers from the overall H-1B cap for foreign nationals holding masters or higher degrees from U.S. universities. Petitions seeking Fiscal Year 2005 H-1B visa numbers under the exemption received on or after May 12, 2005, will be accepted for filing.

The new regulations, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master’s level degree from a U.S. academic institution, in addition to the Congressionally-mandated annual cap of 65,000 H-1B visas.

Question: About how many more remain this year for the advanced degree holders?

Answer: About 13,600 slots remain available for fiscal year 2005 (which ends on September 30, 2005). Only foreign nationals holding masters or higher degrees from U.S. universities are eligible for one of these numbers. Because the 65,000 cap has already been reached, H-1B employers seeking the services of foreign nationals who do not hold such degrees are restricted to filing petitions for a FY 2006 number (i.e., for employment commencing on or after October 1, 2005) unless a different cap exemption is applicable (e.g., the employer is an institution of higher education). Note that a new 20,000 cap exemption will apply for FY 2006. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000. As a result, once the 20,000 numbers are used, an initial petition for an advanced-degree worker will be approved only if a number is available within the general 65,000 cap or the case is not subject to the cap under a different exemption (i.e., the employer is an institution of higher education).

Question: My friend has had an H-1B for almost 6 years and has had a Labor Certification pending for over 1 year. I heard you can only have an H-1B for 6 years maximum. What is he to do?

Answer: Post-Sixth Year H-1B Extensions Based on Long-Pending Permanent Residence Papers under what is known as AC-21 § 106(a)) allows for an extension if a labor certification or employment-based petition has been filed on behalf of the alien and remains pending for 365 days. Note the following issues clarified by the 2005 memo. Combined standard and post-sixth year H-1B extensions permitted. To obtain a post-sixth year H-1B extension, there is no need for the foreign national to first request an extension of time through the completion of his or her initial six years and then request an additional extension of time beyond the six-year limit. The petitioner can request an extension that combines the remaining time in the initial six-year H-1B period and post-sixth year time. Post-sixth year time can only be granted in one-year increments, and the total period of extension cannot exceed three years.

Question: When should the extension be filed?

Answer: The post-sixth year extension request can be filed prior to the passage of 365 days from the filing of a qualifying labor certification or I-140 petition, as long as the qualifying labor certification or I-140 petition has or will have been pending for 365 days prior to the foreign national’s requested extension start date. However, the extension will not be granted if the foreign national will not be in H-1B status at the time that the 365 days have elapsed, i.e., where there is a gap in status.

Filed under: H-1B, Immigration Law, USCIS, Visa, Work Visa | Tagged: , | Leave a comment »

Does the Government need to know you will be tortured?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I have heard a great deal about the Convention Against Torture and what might be needed. I have a friend that escaped his country because he thought he was going to be killed. However, I am not sure if the government knew that this group of rebels wanted to torture him. Will this qualify for the Convention Against Torture?

Answer: There is a case that just came down in the 9th Circuit Courts of Appeal and it address this issue. First, it is necessary to discuss the facts of that case. In Colombia, Ochoa owned a women’s clothing store in the San Andresito Shopping Center. Initially, Ochoa purchased clothes in Colombia and sold them at his shop. Then in 1996, he started traveling to the United States to purchase clothing. The clothes he purchased were shipped to Colombia, where he sold them wholesale and retail. In the course of Ochoa’s business he borrowed $20,000 from a private lender. The money was lent to Ochoa at six percent interest monthly, seventy-two percent interest annually. In addition to lending money, the lender sent retailers to Ochoa. The retailers would buy clothing from Ochoa on credit and then resell the clothes. The retailers would post-date OCHOA v. GONZALES 5235 checks for the clothes and thirty days later Ochoa would cash the checks. Several of the retailers defaulted on their checks. Ochoa never recovered the money. Because the retailers defaulted on their credit, Ochoa could not repay his loan. Soon thereafter a man named Efrain came to Ochoa’s store on behalf of the lender to collect the money. In a very harsh way, Efrain demanded Ochoa repay the money immediately. Ochoa had heard that Efrain was the “kind of person that you had to watch out for, that he had possibly killed one or two people, but that no one could really prove it.” Ochoa was also approached by a person who claimed to own the money lent to Ochoa. This person, who never said his name, proposed a plan for Ochoa to work for him to repay the loan. Ochoa testified, “he simply wanted me to keep on doing my traveling, so they’d be in charge of picking up my merchandise, send it to Colombia, and then delivering it to me.” Ochoa’s testimony and evidence in the record indicates the lender was a narco trafficker and that he was pressuring Ochoa to participate in a narco-trafficking money laundering scheme. Ochoa did not accept the proposal. Instead, Ochoa offered to give the lender/narco-trafficker his house, car, and business to pay off the loan. The approximate value of these things was $30,000. This would have been an immediate fifty percent profit on the loan. The lender refused. Ochoa’s friends and family advised him to reject the deal and “to just get out, to leave.” They said that people who “worked” for the lenders “normally got killed, or else those who refused to work for them got killed right away.” Ochoa said in his asylum declaration that “In San Andrecito merchants disappeared on a regular basis without any police inquiry, when the merchants had fallen in disgrace with the money lenders.” Because of the threats to their lives Ochoa and Diaz left Colombia and came to the United States. Ochoa entered the United States on December 4, 1997. Diaz entered approximately a month and a half later. They have not returned to 5236 OCHOA v. GONZALES Colombia since. Ochoa believes the situation in Colombia has “actually gotten worse” since they left.

Question: What happened at the Immigration Court with these people?

Answer: The Judge found the petitioners credible and directed Colombia as the country of removal. The Judge denied the petitioners’ applications for asylum and withholding because he found the petitioners did not prove their fear of persecution was “on account of” an enumerated basis. The Judge found the petitioners would be subject to torture if they returned to Colombia and he granted them withholding under the Convention Against Torture (CAT.) The Board of Immigration Appeals reversed the Judges decision that granted relief under CAT. The BIA found there was not sufficient evidence to show the government’s acquiescence in the feared torture.

Question: This certainly seems unfair. What was the outcome in the 9th Circuit Court of Appeals?

Answer: Under CAT a person qualifies for relief if “it is more likely than not that he or she would be tortured in their home country. CAT define torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for . . . any reason based on discrimination of any kind . . . by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The BIA found Ochoa could not show the Colombian government acquiesced to the feared torture. That standard (which is now overruled) requires a petitioner to “do more than show that the officials are aware of the activity constituting torture but are powerless to stop it.” In that standard, it is required that government officials to be “willfully accepting” of the feared torturous activities.

The proper standard under CAT is that a petitioner need only prove the government is aware of a third party’s tortuous activity and does nothing to intervene to prevent it. Therefore, in your friend’s case, if he can show the government is aware of the rebel activity, but does nothing to stop it, he will have met that standard for CATS.

Filed under: asylum, Convention Against Torture (CAT), Immigration Law, immigration provisions, USCIS | Tagged: , | Leave a comment »

PERM: LULAC and CSS are still not over

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

 Question: I think I’m under LULAC, but never knew I could file again. I believed I missed the deadline. Is there anything I could do?

Answer: Yes. U.S Citizenship and Immigration Services (USCIS) announced today that the filing deadline for applications for legalization under the terms of the CSS and LULAC (Newman) settlement agreements is extended from May 23, 2005 until December 31, 2005.

This is not a new amnesty program. The CSS and LULAC (Newman) settlement agreements allow for those who meet certain requirements to apply or reapply for Temporary Resident status under the 1986 amnesty program of Section 245A of Immigration and Nationality Act.

Eligible individuals may apply by submitting a Form I-687, Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act, and a CSS/ LULAC (Newman) Class Membership Worksheet.

Question: What are the basic requirements to be eligible?

Answer: 1) You had to live in the United States unlawfully from before January 1, 1982, to a date between May 5, 1987, and May 4, 1988, when you went to an office of the Immigration Service or a Qualified Designated entity to apply for legalization.

2) You, your parent or your spouse visited an INS office or Qualified Designated Entity between May 5, 1987, and May 4, 1988, to apply for legalization.

3) The INS or QDE told you that you were ineligible for legalization because you had traveled outside the United States without INS permission. You, your spouse or your parent returned to the United States with an immigration issued document such as a Student Visa, Visitor Visa or some other Immigration issued document.

4) You do NOT need to have previously “registered” as a LULAC class member or even had a completed application. However, you did need to go the QDE in the specified time period.

Question: What type of evidence do I need to present to win under this LULAC Settlement agreement?

Answer: Clearly, many people do not have the original documents, or even any stamped documents from Immigration. Usually, if the former INS had rejected the application because of what is known as ‘front-desking’, the person was just turned away. Thus, it is not possible in many instances for an applicant to prove that they were rejected. However, the LULAC settlement specifically states that persons who fall under this settlement may establish eligibility for legalization by way of declarations, and not only by original documents. The settlement also provides class members the right to appeal to a “special master,” a judicial officer with the authority to correct the CIS’s errors in the event the agency does not decide a class member’s legalization application promptly, fairly, and in accordance with the settlement’s guidelines.

Question: When can I apply for this?

Answer: The settlement provides that CIS must begin accepting legalization applications no later than May 24, 2004, but the government might decide to begin the one-year application somewhat earlier. This means that individuals will now have until December 2005, to apply for legalization under the settlement.

Question: Is there any other previous amnesty related provisions that this settlement agreement is applicable toward?

Answer: Actually there are others. Catholic Social Services is another program that is applicable to this settlement agreement. There are a couple of differences. First, you would have had to travel outside the U.S. without authorization after November 6, 1986. Second, you returned to the U.S. without permission.

Therefore, since it has been extended, do not let the deadline pass again if you qualify.

Filed under: CSS, Immigration, Immigration Law, immigration provisions, LULAC | Tagged: , | 10 Comments »

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