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Insight into anticipated EB-2 (India) Visa Priority Date Movements from AILA/U.S. Department of State

VIA AILA

On January 9, 2015, the American Immigration Lawyers Association’s Department of State Liaison Committee asked Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State for his thoughts on current and future trends/projections with regards to immigrant visa preference categories. The Committee hopes that this action may help provide additional insight, beyond the basic visa availability updates that are provided in the monthly Visa Bulletin.

Updates:

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Bitcoin entrepreneur Roger Ver gave up U.S. Citizenship and left but denied U.S. entry for a short visit under INA 214(b), a regulation aimed at preventing the entry of individuals who would Overstay their Visa

Coindesk.com notes that Bitcoin entrepreneur Roger Ver was denied a non-immigrant visa for the third time this week.  He was planning to speak at the North American Bitcoin Conference in Miami later this month.

Interestingly, Mr. Ver was denied under Section 214(b) of the Immigration and Nationality Act (INA) which states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case – that the applicant only intends to visit America for a short duration and maintains ties abroad that would compel them to leave the U.S. at the end of the temporary stay.  Consular officers have a substantial say in adjudicating each applicant to determine whether that applicant has overcome the requirements of this section.

It is strange then, to say the least, that Mr. Ver was denied by the U.S. Consular General, Barbados, under a regulation that requires he prove his intent to depart the U.S. when he appears to have already done so.  While the Coindesk article does note that Mr. Ver’s “parents, siblings and extended family all live in the US“, his decision last year to legally relinquish his U.S. Citizenship (at an apparent cost of $350,000, which he paid into the U.S. treasury) his decision to take up citizenship of a different country, his having resided mainly abroad for the past 9 years – these facts objectively constitute clear, material and probative evidence establishing an intent to depart the U.S. after a short visit.

While Mr. Ver can attempt to enter the US in the future (a denial under section 214(b) is not permanent) chances for subsequent approval diminish with each denial.  Meaning: the fourth time is probably not going to be the charm.

While it’s a good time for us to revisit INA 214(b) – an overbroad, overused “hatchet” which has kept many a qualified individual out of the U.S, it appears possible that Mr. Ver’s visa denial is actually predicated upon other (read: political) grounds.

November 2014 Visa Bulletin: India EB2 Retrogresses

The Department of State released the Visa Bulletin for November 2014 which notes a slight forward movement in most categories, except the employment-based, second preference (EB2) India category, which retrogressed from May 1, 2009 to February 15, 2005. The Visa Bulletin, see below, also included notes on potential visa availability in the coming months.

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Major Retrogression Imminent for EB-2 India

Via aila.org

Per the AILA DOS Liaison Committee’s followup with Mr. Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, “retrogression of EB-2 India appears to be imminent, and could happen as early as November. The October 2014 priority date for EB-2 India is May 1, 2009. Given current demand, the priority date will retrogress, possibly to a date in early 2005.”

More details:

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U.S. Citizen client calls on U.S. Department of State to review overbroad and erroneous Terrorism allegation against her husband

Attorney Ashwin Sharma is defending a client wrongly deemed permanently inadmissible to the U.S. under the Terrorism Related Inadmissibility Grounds (“TRIG”) section in the INA.  TRIG is the same overbroad regulation that many innocent individuals have been unjustly subject to.  For example, an asylee from Burundi was named a terrorist and jailed for 20 months by the U.S. because he was found to have financially supported the Rebel group that robbed him of $4.00 and a bagged lunch.  Similarly, Mr. Nelson Mandela was subject to this regulation for having fought against apartheid.  He required a special waiver from the then Secretary of State Condoleezza Rice to enter the U.S.

Opponents of TRIG’s overbroad reach have pointed out that even America’s first President George Washington would have been subject to Terrorism Related Grounds of Inadmissibility, as the law stands today, for having fought in the Revolutionary War against the British.

New Visa Processing System at Mission India

There is a new Visa Processing System at Mission India which can be accessed at http://www.ustraveldocs.com/in/

Attorney Sharma defends client who was wrongly accused of being a ‘terrorist’ and barred from entering the United States

"It would be ludicrous to consider him a member of the Taliban or any other terrorist group just because he works for a bank that happens to have been nationalized by the Taliban," Sharma said.

Attorney Sharma and our client were interviewed by Channel 4 News yesterday. Our client’s Afghan husband has been wrongly deemed permanently inadmissible to the U.S. under the Terrorism Related Inadmissibility Grounds section in the INA, the same overbroad regulation that many innocent individuals have been unjustly subject to.

For example: an asylee from Burundi was considered a terrorist under this regulation, and jailed for 20 months by the U.S. because he was found to have financially supported the Rebel group that robbed him of $4.00 and a bagged lunch. For fighting against Apartheid, Mr. Nelson Mandela was subjected to this regulation and had to be granted a waiver to enter the U.S. by the then Secretary of State Condoleezza Rice.

Attorney Sharma will be filing an exemption for our client’s husband with the offices of the Secretary of State Hillary Clinton, Secretary of the Department of Homeland Security Janet Napolitano and/or U.S. Attorney General Eric Holder. Our exemption will petition the highest levels of our government to review this case again, and approve an admission to the U.S. if no adverse grounds are discovered.

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Information on Consulates’ use of 221(g) refusals

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial.  Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.  
In practice, the following are some situations that often give rise to a 221(g) refusal: 
1. Additional support documents are required, such as proof of local employment; 
2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory 
Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”) 
3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility. 
4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.
5. Applicant’s PIMS profile has not been updated.
A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter.  However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.  
The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers.  According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications.  About 87% of these were eventually overcome and visas were issued.
221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”.  Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.

DOS indicates no changes in student visa policy or adjudication with regards to Indian students

Despite some educational initiatives carried out recently between India and the U.S., State Department spokesperson Victoria Nuland indicated this week that there will be no changes in student visa policy or adjudication with regards to Indian students.

EB-2 Priority Date Movement in FY2012 for China-mainland Born and India expected to retrogress to August 15, 2007

More bad news for Indian and Mainland Chinese born applicants.  The Chief of Immigrant Visa Control & Reporting in the State Department, Charlie Oppenheim, confirmed with the American Immigration Lawyers Association recently that priority date movement in the EB-2 category for China-mainland born and India for the remainder of FY2012 will retrogress. 
The May Visa Bulletin for the employment based second preference (EB-2) for China and India is expected to retrogress August 15, 2007. Evidently the increasing numbers of such applications require DOS to freeze EB-2 movement. There is presently no information as to estimates of EB-2 movement for China and India for the rest of the years. USCIS indicates that it will maintain its policy of preadjudicating adjustment of status (AOS) cases that were received through April. These cases will be frozen by the State Department until movement can potentially resume, from June/July onwards.

IMMIGRATION ATTORNEY APPLAUDS NEWLY ANNOUNCED DHS REFORMS IN FURTHERANCE OF ATTRACTING AND RETAINING HIGHLY SKILLED IMMIGRANTS/INVESTORS AND CALLS FOR PARALLEL CHANGES IN THE U.S. CONSULAR PROCESSING SYSTEM

The Department of Homeland Security (DHS) has announced substantial changes to our immigration system by way of a two prong strategy aimed at retaining highly skilled immigrants and increasing investment in the U.S. by foreign investors, reports U.S. Immigration lawyer Ashwin Sharma. The DHS announced this week that it would add to or modify established immigration processes so as to further President Obama’s commitments to:

1.  The Creation of a “Startup Visa,”

2. Strengthening the H-1B nonimmigrant professional program,

and

3. “Stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields, and make improvements to existing programs.

The DHS hopes that these and other proposed changes will attract and retain highly-skilled immigrants.

Ashwin Sharma, a member of the American Immigration Lawyers Association, applauds the DHS’s actions and calls for parallel changes within the U.S. Department of State’s Consular Posts. “We urgently require these changes and more, particularly with regard to professionals and investors.  It has never been more difficult for tourists, professionals or investors to legally enter this country and contribute to the American economy.  Our various immigration departments and agencies are interpreting the same laws differently.  The U.S. Consulates, for example, appear to be ignoring specific Congressional mandates.  Furthermore, there appears to be little communication between DHS and the Consulates which results in the inexplicable penalization of valuable immigrants.”

Mr. Sharma continued, “For example, to fill a specialty occupation with an H-1B professional worker, a U.S. employer may pay up to $5,500 just in government filing fees, provide hundreds or thousands of pages to DHS in support, make applicable attestations, answer up to one or two DHS queries and remain ready for a random on-site inspection.  However, even after obtaining an approval subsequent to this rigorous and expensive adjudication process, which will have to be repeated each time an employer files a case, an employer may learn that their H-1B employee(s) are barred from reentering the U.S. after a short visit abroad.  These employee(s) may be held abroad for months or years, away from their family, home and of course, job.  U.S. employers of those encountering such a situation often lose contracts, profits and incur harm to their corporate reputation.”

A U.S. Consular officer may deny entry to the U.S. to anyone, even someone with a DHS approved H-1B.  Such a denial follows, generally, a two to five minute interview in which a Consular officer quickly flips through the same documentation previously scrutinized by the DHS.  Presently, the main reason for such denials for H-1B IT workers appears predicated on Consular Officers’ outdated interpretation of what constitutes an “employee-employer” relationship within the H-1B context.  This definition however, has been substantially modified by DHS and DHS Chief Napolitano since the original, restrictive definition was announced in January of 2010.  Unfortunately, no one seems to have issued the revisions to the Consulates.  Further, it appears that a substantial percentage of such H-1B visa denials may be improper.  This is because the Foreign Affairs Manual (“FAM”) guidelines for Consulates state that a U.S. Consular Officer may only deny a case on very specific grounds, that is, the discovery of new negative facts not previously known to DHS in the course of DHS’ adjudication.  For example, 9 FAM 41.53(d) states that,”

“…The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.”

Mr. Sharma highlighted a selection in the FAM which indicates a Consular officer,

 “…must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition  process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma noted that, “The FAM repeatedly emphasizes that DHS, the original adjudicator of the petition, should be given greater deference than Consulates in reviewing the qualifications of a particular alien for “H” status, and that Consulates should rely on DHS expertise, and not their own.  This is not only so because Congress explicitly and implicitly assigned “responsibility” and “authority” of making such a decision to DHS but also because of the complexity of H petitions in general.”

“By mandating a preliminary petition process, Congress placed responsibility and authority with Department of Homeland Security (DHS) to determine whether the alien meets the required qualifications for “H” status.  Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” 9 FAM 41.53 N2.1 Department of Homeland Security (DHS) Responsible for Adjudicating H Petitions”

Mr. Sharma stated, “Another unambiguous demand for Consulates’ deference to DHS is contained in 9 FAM 41.53 N2.2, under the heading entitled, “Approved Petition Is Prima Facie Evidence of Entitlement to H Classification”.  Subsection (a) of this section makes it abundantly clear that the Consulate or Consular officer should not make any adverse decision on an H-1B petition approved by DHS, unless the Consulate discovers (presumably material) information during the visa interview that was not available to DHS,”

“You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status.  The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.”

Mr. Sharma emphasized that it is “only if the Consulate discovers material not known to the DHS is it advised to issue a request for evidence in the following note (b),”

“If information develops during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. “  

Mr. Sharma provided another example in 9 FAM 41.53 N2.3, “Referring Approved H Petition to Department of Homeland Security (DHS) for Reconsideration” which he stated “…reemphasizes an often ignored directive: that Consular officers,”

“… should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration.  Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS.  You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma concluded, “It is highly improbable that freshly discovered documentary evidence, both material in nature and unavailable to DHS at the time of original adjudication, could be discovered during the course of a typically rapid Consulate interview for the majority of H-1B petitions that have been denied recently.  Visa applicants and their employers obey the law, ‘wait their turn’ and pay the requisite fees but are often those most ill treated by our system.  These individuals are suffering harm because of the carelessness, ignorance and a lack of communication within and among our Immigration agencies, particularly at the Consular level.  This may be one of the major reasons why our economy suffers; tourists, students, investors and professionals are increasingly selecting emigration to Australia and Canada over the U.S. and its unpredictable, almost schizophrenic immigration system.  I welcome the DHS’ proposed changes but they will have little impact if the U.S. Department of State’s Consulates continue to ignore them.”

Changes to Visa Validity for Iranian Student Applicants in F, J, and M Visa Categories

VIA Department of State


Media Note
Office of the Spokesman

Washington, DC
May 20, 2011


[Also available in Persian]

As of May 20, 2011, qualified Iranian applicants for visas in the F, J, and M categories for non-sensitive, non-technical fields of study and research and their dependents will be eligible to receive two-year, multiple-entry visas. This is an increase in the current visa validity of three months, single entry.

This change will allow Iranian students and exchange visitors to travel more easily, furthering our goal of promoting the free flow of information and ideas. This important decision is being taken as the global community witnesses the Iranian Government’s increasing censorship and isolation of its own people.

Iranians currently in the United States on a three-month, single-entry visa in one of these categories must reapply outside the United States at a consular post in order to obtain two-year, multiple-entry visas. Keep in mind that the validity of a visa refers to the time period the visa holder has to enter the U.S. It has no bearing on the length of stay pe
rmitted by U.S. Customs and Border Protection officials at the port of entry. Iranian students and exchange visitors in good standing in the United States do not need to apply for a new visa until after they depart the United States.

PRN: 2011/807

EB-2 priority dates for China and India expected to advance some years based on unused EB-1 numbers

The Chief of the Immigrant Visa Control and Reporting Division, Charlie Oppenheim, U.S. Department of State, recently stated that has been a substantial reduction for EB-1 numbers, beginning in 10/2010. 

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

As a result, EB-2 priority dates for China and India are expected to move forward some years.

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