Visas

Question: My girlfriend is from Brazil and has a B-2 visa stamp. Over the last year, she has spent more than half the time visiting me in the US. The last time she left was about three months, and now she wants to return. Does she run any risk of being denied entry, and how to minimize such risks? Can she alternatively apply for an F-1 VISA to study English?

On the 23 JAN 2012 the American Immigration Lawyers Association (AILA) posted notes from a discussion with Charlie Oppenheim of the Visa Office about visa demand in the employment preference categories, and predictions for the FY2012 Visa Bulletin.

Question: Foreign national is in H-1B status with I-94 expiring in June 2012. Spouse has indepedant L-1A status. I-129 H-1B extension pending with USCIS. Foreign national is asking RWG - in case H-1B extension is rejected, can he change status to L-2 (dependent of L-1A) without having to leave the United States?

RWG Answer: Possibly.

Courtesy of the American Immigration Council

Washington D.C. - In a blow to the state anti-immigration movement, the Supreme Court ruled today that the authority to enforce immigration laws rests squarely with the federal government, limiting the role that states may play in crafting state-level answers to immigration enforcement. By a 5-3 margin, the Court struck down three of the four provisions of SB 1070 that were challenged by the Obama administration as pre-empted under federal law. While the Court agreed that Arizona’s attempt to limit immigration by creating new laws and new penalties to punish undocumented immigrants was pre-empted, it found that a provision requiring local police to investigate the legal status of suspected undocumented immigrants was not pre-empted on its face. The court read this provision very narrowly, however, leaving open the door to future lawsuits based on racial profiling and other legal violations.

“Today’s decision makes clear that the federal government—and only the federal government—has the power and authority to set the nation’s immigration policies,” said Benjamin Johnson, Executive Director of the American Immigration Council. “Despite its strongly worded rejection of Arizona's effort to set its own immigration policies, the Court adopted a wait-and-see approach to the controversial racial profiling section of the law. There is already ample evidence of discrimination and abuse in Arizona, and many communities in the state will bear the brunt of the Court's unwillingness to face that reality. It's time for Congress to heed the dire warnings contained in this opinion and recommit to fixing our broken immigration system.”

Update: There is no news on H.R. 3012, the High Skilled Immigrants Act, which was put on hold by Senator Charles Grassley (R-IA).  But even without H.R. 3012, the January 2012 Visa Bulletin showed the China and India EB-2 category (for aliens with advanced degrees or equivalent, or in the national interest (NIW) advancing more than 9 months from 3/15/08 to 1/1/2009.  This rapid advancement demonstrates that demand for green cards amongst advanced degree professionals from countries other than India and China is decreasing, so unused green cards are being granted to those seeking immigration from China/India.  

More on H.R. 3012.  On 12/15/11, in order to release his hold, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of family per country limit increase and reducing the employment based per country limit to 15%.  The amendment would also eliminate the diversity visa program and add provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs.

H-1B Cap Update: As of 10/7/11, USCIS received approx 41,000 cap subject H-1B cases and another 19,100 towards the advanced degree cap.

In preparation for a long-delayed transition to online processing of immigration applications, the Homeland Security Department has released new rules for describing forms and filing procedures in official policies.

The 43-page federal notice published Monday instructs the U.S. Citizenship and Immigration Services, a unit of DHS, to stop typing on documents the traditional numbers and titles for various benefit claims, such as "Application for Naturalization, form N-400." Instead, to accommodate the new computerized Transformation system, USCIS policies and rules will carry more generic phrases, such as "the form designated by USCIS."

Below please find a copy of a January 2011 AAO [Administrative Appeals Office] decision which overturns a denial issued by USCIS in an L-1 “New Office” extension case.

L-1 “New Office” petitions are commonly used when an established foreign company wants to expand in the United States and send a manager/executive or specialized knowledge employee to work for the NEW U.S. entity.

New Office L-1s are granted for one year by showing, among other things, physical premises in the U.S. and the financial viability of the U.S. entity.

Question: I am on an H1B visa and my wife is on H4. We came to the US in the year 2007. My I-129 and I-94 was extended in September 2009, however due to lack of information we did not apply for my wife’s I-94 extension. She went back to India on June 19, 2010, having overstayed her I-94 by 270 days. She finally got her H-4 visa stamp from the Delhi Consulate last week. We made a full disclosure about her overstay on the visa application [DS-160] to Delhi Consulate. My question is can CBP at the San Francisco Port-of-Entry refuse her entry due to her earlier overstay? If yes, can we do something about in advance? 

Answer:Excellent work securing the visa after the overstay! Unless CBP finds that your visa application was fraudulent, for example, that you did not disclose the overstay to the US Consulate, I see no reason for CBP to refuse entry. Your wife might expect to be pulled into secondary inspection however, and answer questions about her immigration history and visa application. I might help for her to carry copies of her visa application with supporting documentation to present, if necessary. There is not much else one can do in advance. In some cases, I might call CBP [contact information for CBP at the SF International Airport provided below] to ask them what their policy is. But again, in your case, unless there was fraud, or she is otherwise not eligible to enter as an H-4 [for example if you were no longer working in H-1B] CBP should not have a problem honoring the valid visa stamp.

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

By JOSE ANTONIO VARGAS

Published: June 22, 2011 But I am still an undocumented immigrant. And that means living a different kind of reality. It means going about my day in fear of being found out. It means rarely trusting people, even those closest to me, with who I really am. It means keeping my family photos in a shoebox rather than displaying them on shelves in my home, so friends don’t ask about them. It means reluctantly, even painfully, doing things I know are wrong and unlawful. And it has meant relying on a sort of 21st-century underground railroad of supporters, people who took an interest in my future and took risks for me.

Jose Antonio Vargas (Jose@DefineAmerican.com) is a former reporter for The Washington Post and shared a Pulitzer Prize for coverage of the Virginia Tech shootings. He founded Define American, which seeks to change the conversation on immigration reform.