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US Dept of State Alert on Provisionally Revoked/Expired/Cancelled Visas

DOS alert that visas that were provisional revoked are now valid for travel to the U.S., if the holder is otherwise eligible. Individuals whose visas are expired, or were physically cancelled, must apply for a new visa, absent a CBP grant parole or waive the visa requirement at the port of entry.

Link to US Dept of State Announcement

Federal Court Suspends President Trump’s Executive Order banning Muslims and Refugees, CBP & DOS to Resume Business as Usual

On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.

Customs and Border Protection: The American Immigration Lawyers Association has been advised that all CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

Department of State: DOS has confirmed that assuming there were no other issues in the case, provisionally revoked visas have been reversed and are valid again.

The Trump administration declared its intention to file an emergency stay of the order “at the earliest possible time.”

What to Do If a Legal Permanent Resident (Green Card Holder) is Asked to Relinquish his/her Green Card and Sign a Form I-407, Abandonment of LPR Status by Customs and Border Protection (CBP)

In a word: Don’t.

Upon returning to the U.S., Legal Permanent Residents (LPR) should not automatically surrender their green cards if asked to do so. An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued and the government must prove abandonment by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Form I-407 must be signed voluntarily and there are no potential negative ramifications for refusing to sign. Neither failure to sign nor abandonment is grounds for detention. Rather, an LPR who refuses to sign Form I-407 must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.

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Significant Change to Employment Based Green Card Cases – As of today, two separate categories for EB Visa Bulletins, for the filing (Acceptance) of Adjustment of Status cases and one for final Approval of cases

The Obama Administration’s attempts to “streamline” the U.S. employment based green card process appeared to have paid off when the U.S. Department of State recently acknowledged that it was reworking its visa availability system.  Today, however, we received a wonderful surprise: as per the U.S. Dept. of State’s Visa Bulletin for October 2015, a significant change in the EB process is apparent: the Visa Bulletin includes two separate employment based categories, each with a different cut off date (see below).

The first category represents the “Approval” category which notes the priority date as to when an Applicant’s Adjustment of Status or IV case would be ultimately approved.  The second category represents the “Acceptance” category which control when an Applicant could file for Adjustment of Status, assuming an Applicant’s Priority Date is current at that time.

This is a remarkable and welcome update that conveys significant benefits to EB preference applicants, particularly for Indian and Chinese nationals who were most prejudiced by the long delays arising from retrogressed priority dates.

USCIS should prepare for an avalanche of AOS applications.



A.  APPLICATION FINAL ACTION DATES FOR
EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date isearlier than the cut-off date listed below.)

Employment- Based All Chargeability Areas Except Those Listed CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN12 01MAY05 C C
3rd 15AUG15 15OCT11 08MAR04 15AUG15 01JAN07
Other Workers 15AUG15 01JAN06 08MAR04 15AUG15 01JAN07
4th C C C C C
Certain Religious Workers U U U U U
5th
Targeted
Employment
Areas/

Regional Centers
C 08OCT13 C C C
5th
Pilot
Programs
U U U U U

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DATES FOR FILING OF EMPLOYMENT-BASED
VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.

USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. Applicants for adjustment of status may visitwww.USCIS.gov/visabulletininfo for additional information.

Employment-
Based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01MAY14 01JUL11 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN15
Other Workers 01SEP15 01JAN07 01JUL05 01SEP15 01JAN15
4th C C C C C
Certain Religious
Workers
C C C C C
5th Targeted
Employment Areas/
Regional Centers
and Pilot Programs
C 01MAY15 C C C

6.  The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at:  (202) 485-7699.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

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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