Dixon H. Fung, Esq. 馮達舜律師

September 2011 China Business Trip 2011年9月中國之旅

2011-10-12T15:22:00.000-07:00

I was fortunate enough to be invited to visit Yunnan and Shandong Provinces in China in September 2011. During this trip, I attended meetings, did a short presentation, and visited with potential clients. Here are some pictures of the trip:

2013 Diversity Visa Lottery Program 多國籍移民簽證計劃

2011-10-12T14:43:00.000-07:00

If you are interested in the diversity lottery program for the fiscal year of 2013, you may start submitting application from October 4 to November 5, 2011. Like last year, 50,000 immigrant visas will be available under the program for the fiscal year of 2013. Result of the lottery will be made available on May 1, 2012.

A couple friendly reminders: 1) Persons born in Mainland China, Mexico, and other countries where a large number of immigrants come from are not eligible to participate in the lottery; 2) the program is completely free and only those who win will be required to pay a visa application fee; 3) winners will not be notified by mail or email by the State Department.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

如果你有興趣參加2013財政年度的多國籍移民簽證計劃，你需要在2011年10月1日至11月5日期間遞交申請表。與去年一樣，多國籍移民簽證計劃今年將會提供50,000個移民簽證配額。抽籤結果將會在2012年5月1日公佈。

以下是關於此計劃的溫馨提示：1)於中國大陸、墨西哥等移民主要來源地出生的人士是不能參加此計劃的；2) 多國籍移民簽證計劃是免費參加的。只有符合資格而被選中面談的申請人需繳交簽證的申請費；3)國務院不會將中籤通知書以郵件或電郵方式寄給被抽中的幸運兒。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本人查詢。

New Administrative Changes to Attract Foreign Investors 吸引外商投資的新措施

2011-08-04T14:19:00.000-07:00

USCIS announced this week that a few administarive changes would be made to attract more foreign investors to create job opportunities in the U.S. These changes include:

Premium processing available to EB-1 petitioners that apply under the multinational executives and managers caategory (E13) and EB-5 investors;
EB-2 applicants may apply under the National Interest Waiver (NIW) if they can show that they are either a member in a profession that requires an advanced degree or an individual of exceptional ability and their investment in the U.S. will benefit the interest of the United States;
Specialized EB-5 intake teams will be created to handle EB-5 adjudications and EB-5 regional center applicants will be able to communicate with the intake teams directly through email;
An expert decision board will be convened to make decisions on EB-5 application;
Re-emphasize that self-employed aliens may apply for H-1B visa as long as the aliens can show that their own company can exercise control over them, such as having a separate board that can hire, pay, or fire the aliens.

These changes will certainly make it easier and faster for investors to apply for different kind of non-immigrant and immigrant work visas. Hopefully, USCIS will be able to articulate a specific plan to implement these changes in the next 30 days as promised by USCIS Director Alejandro Mayorkas.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

移民局在這個星期宣佈一些申請程序上的改革措施，以吸引外籍投資者在美國創造就業機會。這些措施包括：

EB-1類別中跨國公司行政人員及經理(E13)及EB-5投資移民的申請人可申請特快服務；
外商可以透過EB-2中的國家利益豁免(National Interest Waiver; NIW)類別申請綠咭。外商必須從事需要高等學歷的專業或本身擁有特殊的才能，而且從事的工作會為全國的經濟帶來益處；
成立數個專門負責 EB-5 案件的隊伍，而EB-5 投資中心的申請人可以以電郵方式與這些隊伍溝通；
成立專家小組，專門負責批核EB-5申請；
重申自雇人士只要能夠證明其公司可以對他擁有控制權，如有獨立的董事會可以僱用、支付薪水、及罷免申請人，那麼申請人仍有資格申請H-1B 簽證。

這些改革將使投資者能更容易和快捷地得到各種不同的非移民和移民工作簽證。希望誠如移民局局長梅奧卡斯所說，關於這些改革的具體實施計劃可以在30天內出爐。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

E-Filing 網上申請

2011-07-28T14:25:00.000-07:00

USCIS announced that it would start accepting I-539 application electronically in December 2011. By creating a username and password, an applicant can fill out I-539 and submit evidence online. In 2012, applicants of some non-immigrant benefits, such as I-131 and I-765, may file those applications electronically. In latter stages, applicants of immigrant benefits will be able to do the same. USCIS has posted a prototype video online if you are interested to learn more about filing an application online in the future.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

USCIS宣佈，在2011年12月開始，I-539表格的申請人可以在網上遞交申請。申請人只要建立一個網上帳戶，便能在網上填好I-539表格和遞交證據。在2012年，一些非移民表格的申請人，例如I-131和I-765，也可以在網上提出那些申請。在不久的將來，移民表格的申請人亦可以在網上遞交申請。USCIS在網上張貼了一段關於占電子申請的錄影，有興趣的您亦不妨看看。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Diversity Visa Fraud 多元化簽證計劃詐騙

2011-07-21T17:40:00.000-07:00

On July 15 (last Friday), the State Department drew the winners for the Diversity Visa Program for fiscal year 2012 again after a hiccup back in May. Unfortunately, some dishonest people are trying to take advantage of the American dream of millions of people. In fact, the problem is serious enough that USCIS warns against Lottery Visa Fraud in its official blog.

Here are a few things to remember about the Diversity Visa Program and or the so-called visa lottery:

First, the State Department does not send out email or postal mail to notify the winners. Instead, participants of the program need to go to the State Department's website to check whether they win.

Second, a participant must have entered the draw for a particular year in order to be drawn. For example, a one-time participant in the lottery held in FY 2007 will never get picked for FY 2012.

Third, if you are a citizen from a list of countries in which the U.S. has received a lot of immigrants from, you are ineligible to participate in the program. For example, if you are from India or Mainland China, you know you will not be a winner of the lottery because you are not qualified to participate at the first place.

Finally, winners of the lottery do not need to pay anything until they apply for an immigrant visa at the U.S. Consulate/embassy.

Therefore, if you have received any communication about you winning the lottery that runs afoul of the above principles, you can know for sure it is a scam and you should discard it.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

由於電腦於5月出錯，國務院在7月15日(上星期五)再次為2012年財政年度的多元化簽證計劃進行抽籤。不幸的是，某些不誠實的人利用成千上萬希望一圓美國夢的人來進行詐騙。由於問題嚴重，美國移民局於其官方部落格對此提出警告。

關於多元化簽證計劃，有四點大家應該注意：

首先，參加者需要到國務院的網站檢查結果，國務院不會發出電子郵件或信函通知被抽中的幸運兒。

其次，參加者要參加了該年度的抽籤才會有機會被抽中。例如，一個参加者只曾參加2007年財政年度的抽籤，他一定不會在2012年財政年度被抽中。

第三，如果你在一個美國主要移民來源的國家出生，你沒有資格参加此計劃。例如，如果你是在印度或中國大陸出生，那麼你一定不會被抽中，因為你根本不能參加此計劃。

最後，被抽中的幸運兒在他們到美國領事館申請移民簽證時才需付款。

所以，如果你收到任何與上述有衝突的通信，你便可以知道它是假的。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Immigrant Visa and Consular Processing 到領事館申請移民簽證

2011-07-12T14:14:00.000-07:00

For most I-130, I-140, and I-526 applicants who live outside of the United States, they must apply for an immigrant visa (IV) to enter the U.S. after their application is approved. In the initial application of I-130/I-140.I-526, the applicant may specify which consulate the applicant would apply for an IV. Under 22 CFR §42.61(a), an applicant should apply for an IV with the Consulate that has jurisdiction over his or her residence. Usually this means the applicant's home country. If the applicant is currently working at a foreign country, an applicant may apply for an IV even though the applicant may not have a residency there. However, the Consulate in the third country may exercise discretion and refuse to process the IV.

After the I-130/I-140/I-526 application has been approved by USCIS, the application is forwarded to the National Visa Center (NVC). Usually the applicant will need to pay the document processing fee and submit the documents required for the particular kind of application. After NVC has reviewed the file, the applicant will receive a notice that specifies the day and time of the interview.

When attending an interview with a consulate officer, it is important to know the information included in the original I-130/I-140/I-526 application. For instance, an EB-5 applicant should be able to know the basics of his or her investment, such as the location, investment amount, etc. An I-130 applicant should be able to answer simple questions about the petitioner.

In short, an applicant should follow the directions sent from the NVC closely and be prepared to attend the IV interview. It would certainly be a pain if the applicant's IV application gets denied after going through the I-130/I-140/I-526 application process.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

多數居住在美國境外的I-130、I-140和I-526申請人都必須在他們的移民申請獲批後到領事館申請移民簽證(IV)進入美國。在提交I-130/I-140/I-526申請的時候，申請人可以揀選在哪個領事館申請IV。22 CFR §42.61(a)規定申請人應該在他們居住地方所屬的領事館申請IV。這通常是申請人的家鄉或祖國。如果申請人在外地工作，即使申請人不在該地居住，申請人也可以在該地所屬的領事館申請IV。然而，領事館有權行使酌情權而拒绝處理該申請人的IV申請。

在移民局審批准了I-130/I-140/I-526之後，申請會被送到全國簽證中心(NVC)。通常申請人需要繳付文件處理費和遞交與申請有關的證明文件。在NVC查核文件之後，申請人將收到關於到領事館面談的資料，如日期、時間及地址。與領事面談的時候，申請人應熟悉I-130/I-140/I-526申請書中的資料。例如， EB-5申請人應能回答關於他們投資項目的基本資料，例如地點、投資額等等。 I-130申請人應該能回答關於替他提交申請的家人的簡單問題。

簡而言之，申請人應該小心跟從NVC的指示及到領事館面談前做好準備。如果申請人在通過移民局I-130/I-140/I-526的審批之後無法獲得IV來美，就真是功虧一簣了。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Sophisticated Business Plans 詳細的計劃書

2011-06-30T15:25:00.000-07:00

One common issue many potential immigrant investors and non-immigrant workers have to face is to write up a business plan that works. In order for an I-526 to be approved, the investor has to draw up a very sophisticated business plan that shows that the applicant's investment would actually work. Similarly, applicants for an E-2 visa or a L-1A visa under the new office provision also need to come up with a solid business plan. That begs the question: what kind of business plan do these applicants need?

It seems that USCIS like facts and statistics to back up claims. Therefore, whenever possible, try look for data that is published by the government, such as census and employment data. If official data is impossible to be obtained, find other data that is published by private companies and give proper citations to the source of the data. By doing so, it shows USCIS that the applicant is extremely serious about the business and a detailed business analysis has already been performed. That in turn will improve the chance of an approval.

Moreover, a business plan that has solid projections would be preferred. How the invested funds will be used, when and why a position is created, and the proposed salaries of the position should be explained and outlined.

The key thing to bear in mind for most situations is this: a renewal will needed to be filed down the road. If your initial business plan is lousy and unworkable, it may come back to haunt you when renewal comes!

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

投資移民及非移民工作簽證的申請人常遇到的一個問題是如何草擬一份可行的工作計劃書。要I-526申請被批准，投資者必須草擬一份詳細的計劃書來證明申請人的投資項目是的確可行的。同樣地，申請E-2簽證或L-1A新公司的簽證也需要一份周全的計劃書。那麼，怎樣的計劃書才算得上是可行的呢？

移民局看起來喜歡有事實和統計支持的計劃書。所以，若情況許可，嘗試找出由政府出版，例如人口調查和就業數據的資料。如果無法獲得官方的數據，就應該嘗試找到由私人公司出版的其他數據，並且列出數據的來源。這樣做可以令移民局相信申請人對投資項目非常認真，並真的詳細研究過投資項目是否可行，從而增加申請獲批准的機會。

再者，計劃書中應有詳盡的預測，解釋和概述將怎麼使用投資的資金、工作職位為什麼及在何時會被創造、以及職位的建議薪金等。

要記住，在大多數情況下，簽證是需要續期的。如果您最初的計劃書是粗淺和難以使用的話，當您要申請續期的時候，可能會為您帶來更大的煩惱!

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Maintain Your Green Card

2011-06-24T11:19:00.000-07:00

One of the most common questions investors and other green card holders ask is: how many days in a year do I need to be in the U.S. in order to keep my green card? Unfortunately, there is no clear cut answer to the question.

First, INA §101(a)(13)(C)(ii) states that a permanent resident shall not be deemed as seeking admission to the U.S. unless the permanent resident "has been absent from the United States for a continuous period in excess of 180 days." What this means is a permanent resident may be deemed inadmissible and denied entry to the U.S. if he or she falls under one of the inadmissibility categories during his or her absence. In that sense, a green card can be lost for being outside the U.S. for more than 180 days.

Second, 8 C.F.R. §211.1(a)(2) states that a permanent resident may not return to the U.S. with his or her green card alone if the permanent resident has been absent from the U.S. for more than one year. The resident either has to present a reentry-permit (I-131) or a SB-1 visa issued by the consulate along with the green card to apply for admission. Thus, without receiving a re-entry permit before leaving the U.S. for more than one year, the permanent resident may lose his or her status to return to the U.S.

Third, the State Department, in its Foreign Affairs Manual (FAM), focuses on the intent and actions of the alien rather than the time outside the U.S. to decide whether an alien has abandoned his or her green card status. The State Department lists the following documents to support the claim that a permanent resident has "an unrelinquished residence" in the U.S. and whether a SB-1 visa should be issued. This list can be found in 9 FAM 42.22 N1.3.:

(1) A driver's license issued within the past year and reflecting the same address as that recorded on the Form I-94, Arrival and Departure Record;

(2) The name and address of the U.S. employer and evidence that a salary has been paid within a reasonable period of time;

(3) Evidence of children’s enrollment in a U.S. school;

(4) Evidence that extended visit abroad was caused by unforeseen circumstances;

(5) Evidence of a predetermined termination date; i.e., graduation, employment contract expiration, etc.;

(6) Evidence of having filed U.S. income tax return(s) for the past year(s); and

(7) Evidence of property ownership, whether real or personal, in the United States.

Moreover, the State Department also states that the following factors show that a permanent resident has abandoned his/her permanent residency and should be taken into account (9 FAM 42.22 N1.4) (emphasis added):

(1) Extended or frequent absences from the United States;

(2) Disposition of property or business affiliations in the United States;

(3) Family, property, or business ties abroad;

(4) Conduct while outside the United States such as, employment by a foreign employer, voting in foreign elections, running for political office in a foreign country, etc.; or

(5) Failure to file U.S. income tax returns.

Although the above factors are used by the State Department in issuing SB-1 visa for returning resident alien, there is no reason to believe that USCIS and CBP officers would not use these factors to consider the green card status of an alien. The fact that extended or frequent absences from the U.S. is a factor showing abandonment of permanent residency is particularly worrying.

In sum, there is an absolute answer to the question of how long an alien can be outside the U.S. before losing his or her green card status. The best answer one can give is: avoid unnecessary extended foreign travels as much as possible and when such travels are necessary, get a re-entry permit before leaving. On the other hand, the permanent resident should continue to pay taxes and maintain properties in the U.S. to maximize his or her tie to the U.S.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

投資者和其他持綠卡者常問的其中一個問題是：在一年中我需要有多少天留在美國才能保住我的綠卡？不幸地，這個問題並沒有一個絕對的答案。

首先，INA §101(a)(13)(c)(ii)闡明，除非永久居民連續180天在美國境外，否則永久居民在入境時不會被視作重新申請進入美國。換句話說，如果永久居民在美國境外時墮入其中一個被禁止入境的類別，在美國境外超過180天會可能令該永久居民的入境申請被拒，失去綠卡資格。

其次， 8 C.F.R. §211.1(a)(2)闡明，如果永久居民離開美國超過一年，他們不可以單靠他們的綠卡進入美國。永久居民必須在入境時出示「再入境許可證」(reentry permit)或領事館發出的SB-1簽證才能申請入境。因此，離開美國超過一年，永久居民也可能失去回美的資格。

第三，美國國務院在其外交事務指南(FAM)中提到，在決定永久居民是否放棄了他們的綠卡身份，領事應集中於永久居民的意圖和行為而非在美國以外的時間。國務院在9 FAM 42.22 N1.3列出以下因素來證明永久居民在美有「無意圖放棄的家」 (unlinquished residence)：

(1) 在過去一年簽發的駕駛執照上的地址與I-94出入境記錄上的地址相符；
(2) 永久居民在美國的僱主的姓名和地址以及在一個合理的時間内曾發放薪水；
(3) 永久居民的孩子在美國學校註冊及就讀；
(4) 永久居民需要長時間在美國境外是基於無法預見的情况；
(5) 離境前有「預定的終止日期」; 如畢業、就業的合同期限等等；
(6) 在過去有在美國繳税；以及
(7) 在美國擁有資產及物業。

國務院在9 FAM 42.22 N1.也列出下列因素為考慮永久居民放棄其身份的證明：
(1) 經常或長時間離開美國；
(2)售賣其在美國的物業或生意;
(3)在海外有家庭、物業或者生意;
(4)其在美國境外的行為，包括在美國境外為外國僱主工作，在外國選舉中投票，在外國參加競選或者
(5)沒有在美國繳税。

雖然上述是國務院考慮簽發SB-1簽證的因素，但是沒有理由相信移民局和邊境官員不會使用這些因素考慮永久居民的身份。總之，永久居民應盡量避免多餘或長時間在美國境外的旅遊，而當這些旅遊是必要的時候，應在離開之前申請「再入境許可證」。另一方面，永久居民應該繼續在美國繳税和持有物業，強化他們在美國的聯繫。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

EB-5 Investment Fever 投資熱

2011-06-08T09:54:00.000-07:00

As recent news articles have indicated, the number of applicants for EB-5 has steadily increased. EB-5 applicants can choose to invest in his or own own business or choose to invest in a regional center that has been approved by USCIS. The general requirement is to invest at least 1 million. However, the required amount is cut into half if the investment is in a rural area or a targeted employment area (TEA) where the unemployment rate is 150% of the national rate. One common misconception is that EB-5 applicants only need to invest $500,000 in regional centers. The reality is that only when a regional center is located in a rural area or a TEA can the required amount be lower from 1 million to $500,000.

In the next few posts, some common questions regarding EB-5 and green card in general will be addressed. Stay tuned!

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

最近不少新聞報導提到EB-5的申請人數目穩步上揚。 EB-5能選擇投資在自己的生意或已經得到移民局批准的區域中心。一般來說，EB-5的投資款項不能低於一百萬美元。然而，如果EB-5申請人的投資項目位於人口稀少或失業率為全國失業率150%的地方(TEA)，那麼投資下限會調低到五十萬美元。很多人誤以為區域中心的投資下限也是五十萬美元，但實際上只有位於人口稀少或TEA的區域中心才是這樣。在之後的幾篇網誌，我們會探討一些關於EB-5和綠卡的常見問題。請大家密切留意!

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Highlights of 2011/05/14 Seminar in Hong Kong on U.S. Immigration Law 2011/5/14香港免費美國移民法講座

2011-05-18T08:51:00.000-07:00

Tax Return 報税

2011-03-18T20:37:00.000-07:00

As the deadline for filing tax return is around the corner, please remember that you have the responsibility to file a return form with the Internal Revenue Service (IRS) and state government by April 15 if you have worked in the U.S. or received interests in your investment. Generally, all green card holders and naturalized citizens need to file a return as a resident. However, the fact that a person does not have a green card does not mean he/she should file a return as an alien. Instead, that depends on whether the person met the substantial presence test in the previous tax year. You should talk a qualified tax accountant or adviser if you are unsure about your status as a taxpayer.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

報税的最後期限將至，如果您去年曾在美國工作或從投資獲利，請切記您有責任在4月15日或之前將稅表遞交到聯邦及州政府的稅務局。通常綠卡持有人和入了美國籍的公民需要以居民身份報稅。然而，沒有綠卡並不等如您能以外國人身份遞交稅表。納稅人是否需要以外國人身份報稅取決於上一年度有多少時間留在美國。如果您對您的納稅人身份有疑問，您應該跟一位合資格的會計師或税務顧問查詢。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

2011 April Visa Bulletin 2011年4月的簽證公報

2011-03-10T14:30:00.000-08:00

According to the April 2011 Visa Bulletin, the biggest losers this time will be applicants under the F1 category, i.e., unmarried children of U.S. citizens.that are over 21 years old. The priority date of this group retrogresses for 8 months for applicants born in China and India and the rest of the world except Mexico and the Phillippines. Other than that, the priority date for most categories either remain the same or progress from a few weeks to a few months.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

2011年4月的簽證公報對大部份F1的移民簽證申請人是一則壞消息：中國、印度、及世界各地(除墨西哥及菲律賓)申請人的優先日期倒退八個月到2004年5月。其餘各類別的優先日期皆停留不動或向前進了數星期而已。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

New Filing Address for AR-11 and AR-11SR 遞交AR-11 或 AR-11SR表格的新地址

2011-03-01T07:50:00.000-08:00

USCIS announced this morning that from 3/15/2011, all AR-11 or AR-11SR have to be filed at the following new address:

DHS/USCIS
Harrisonburg File Storage Facility
Attn: AR-11
1344 Pleasants Drive
Harrisonburg, VA 22801

All non-immigrants (such as students or H-1B workers) and resident aliens are supposed to file an AR-11 or AR-11SR when they have moved. It is free to file the form. Therefore, if you plan to move during summer, please beware of this change of filing location.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

移民局宣佈由2011年3月15日開始，所有AR-11 或 AR-11SR表格應遞交到下列的新地址：

DHS/USCIS
Harrisonburg File Storage Facility
Attn: AR-11
1344 Pleasants Drive
Harrisonburg, VA 22801

所有非移民(如學生及H-1B工作者)在每次搬家後都應遞交 AR-11 or AR-11SR。這兩份表格都是免費的。所以如果你打算在夏天搬家，就應注意這個新的地址。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

New Employment Authorization and Advance Parole Card 新的工作及回美卡

2011-02-16T13:02:00.000-08:00

Last week USCIS announced that it will issue a new card that serves as both work authorization and advance parole to adjustment of status applicants who file their I-131 and I-765 applications concurrently with or after filing their I-485 application. In the past, applicants of adjustment of status will receive a work authorization card and a separate piece of paper that serves as a proof of advance parole if they choose to file an I-131 and an I-765. Specifically, on the face of the work authorization card, there is a statement that says that the card is not valid for reentry purposes. The issuance of this new card will allow adjustment of status applicants to carry one card for work and for reentry to the country after going overseas for a short period of time. For some common questions and answers about this new card, please refer to the link Questions and Answers for the new Employment Authorization and Advance Parole Card on the website of USCIS.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

上星期移民局宣佈他們將會發出新的工作及回美卡予在申請調整身份時或之後提交I-131 及 I-765表格的申請人。在此之前，申請人會分別獲得一張工作卡及一張回美紙，而且在工作卡上通常會附有「此卡不適用於回國用途」此類的字眼。現在申請人得到這張二合一的新卡之後，會發現工作卡上附有「可用作回美卡」的字眼，以後在短暫離開美國後不再需要另外帶一張回美紙才能入境，十分方便。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

March 2011 Visa Bulletin 2011年3月的簽證公報

2011-02-16T12:25:00.000-08:00

The March 2011 Visa Bulletin brings more bad news to most 2A applicants: except for applicants that were born in Mexico, the priority date for all other F2A applicants retrogressed one more year and visa numbers will only be available to applicants who have a priority date on or before January 1, 2007 in March 2011.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

2011年3月的簽證公報對大部份F2A的移民簽證申請人又是一則壞消息：除了在墨西哥出生的申請人外，其餘的申請人的優先日期再倒退一年到2007年1月。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

H-1B Cap Count

2011-01-24T21:12:00.000-08:00

According to USCIS, as of January 21, 62,800 H-1B cap-subject petitions have been receipted and 20,000 H-1B petitions from aliens who have an advanced degree have been receipted. So if you want to change your status to H-1B in this fiscal year, you need to act fast!

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

February 2011 Visa Bulletin 2011年2月的簽證公報

2011-01-20T14:48:00.000-08:00

According to the February 2011 Visa Bulletin, the priority dates for F1, F2A, and F2B applicants that were born outside of Mainland China, Dominican Republic, India, Mexico, and the Philippines are the same as dates released in January 2011. Priority dates for F3 and F4 applicants born outside of those five countries retrogress for one year, i.e., Jan 1, 2001 and Jan 1, 2000 respectively.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

根據2011年2月的簽證公報，在中國大陸、多明尼加共和國、印度、墨西哥和菲律賓以外出生的F1、 F2A及F2B移民簽證申請人的優先日期皆停留在2011年1月的簽證公報所訂出的日期，沒有變動。F3和F4則倒後了一年，即2001年1月1日和2000年1月1日。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

3 Common Misconceptions about Immigration Law 移民法3個常見的問題

2011-01-07T17:17:00.000-08:00

The following are the 3 most common problems I have come across when I deal with clients and prospective clients in 2010:

1. The Burden of Proof
When a foreign national files a petition with the Citizenship and Immigration Services (CIS) or with the State Department, the applicant usually bears the burden of proof to show he/she meets the eligibility for a particular visa. If the applicant fails to provide sufficient evidence to show that he/she meets the requirements, the application will likely be denied. Because in many situations a denial is not reviewable, it is better to provide sufficient evidence at the first place to improve the chance of approval and minimize the chance of denial.

2. Minor Children and Immigration
Many people think that once a parent's immigrant visa petition is approved, the minor child can follow the parent to move to the U.S. Whether this is true depends on the immigrant visa category of the parent. For instance, if an applicant is a parent of a U.S. citizen who is over 21 years old, the applicant may not bring her minor children with her when she immigrates to the U.S.. In contrast, if an applicant is a sibling of a U.S. citizen, the applicant may bring her spouse and her minor children with her to the U.S. The difference is this: in the former case, the parent is an immediate relative and that category is not subject to a numerical quota; in the latter case, the parent is not an immediate relative and that category is subject to a numerical quota. Thus, foreign nationals who have minor children should plan carefully when they apply for an immigrant visa.

3. Effect of Marriage
Because a spouse of a U.S. citizen is considered as an immediate relative and is not subject to an annual numerical quota, many U.S. citizens think that the process of applying for a spouse is a piece of cake. However, a few important factors have to be considered. First and foremost is the venue of the marriage. If the marriage takes place outside the U.S., there is a presumption that the spouse of a U.S. citizen has the intent to immigrate and live in the United States. Therefore, the spouse may not be granted a NIV to come to the U.S. Even if a NIV is issued, CIS may think that the spouse had lied about his/her original intent when he/she applied for a NIV. Therefore, one should plan carefully before getting married.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

下列是我在2010年時與客人諮詢時常見的3個問題：

1. 舉證的責任
當一個外國人提出移民申請，申請人通常有提供證據的責任，證明他或她符合某一類簽證的資格。如果申請人未能提供充分的證據，他或她的申請將被拒絕。由於在許多情況下被拒絕的申請不能覆核，因此在申請的時候提供充分的證據能將被拒簽的機會減少。

2. 未成年兒童移民
許多人認為在父母移民簽證申請獲得批准後，未成年兒童可以順利成章跟隨父母移民到美國。可是，父母的移民簽證類別對未成年兒童可否跟隨來美有決定性的影響。例如，如果申請人是21歲美國公民的父母，當她移居到美國時，她未成年的孩子將無法同時獲得移民簽證來美。相反，如果申請人是美國公民的兄弟姐妹，申請人的配偶和她未成年的孩子將會同時獲得移民簽證，可以舉家來美。兩者有何不同呢？在第一個例子中，父母是公民的真屬親人，而該類別是不受配額限制的; 在後一種情況下，父母不是公民的真屬親人，而該類別受配額限制。因此，有未成年的孩子的外國人在他們申請移民簽證時應該小心計劃。

3. 與公民結婚
由於美國公民的配偶是真屬親人而不受配額限制，許多美國公民以為申請配偶的程序非常容易。然而，申請人必須考慮一些重要的因素。首要是婚禮的地點。如果婚禮在美國境外舉行，移民局將假定美國公民的配偶有移居到美國的意圖，因此可能拒絕簽發非移民簽證給公民的配偶來美。即使獲簽發非移民簽證，移民局也許會認為配偶在申請非移民簽證時說謊或故意隱瞞他/她當初的意圖。所以，美國公民應該在結婚之前小心地計劃。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

January 2011 Visa Bulletin 2011年1月簽證公報

2010-12-14T13:30:00.000-08:00

In the past few months, the waiting time for immigrant visa applicants under the 2A category (spouses and minor children of permanent residents) had decreased significantly. In December 2010, applicants under the 2A category who have a priority date on or before August 1, 2010 might apply for adjustment of status or consular processing through the National Visa Center (NVC).

However, the waiting time for applicants under 2A will be 2-3 years again after the State Department issued the Visa Bulletin for January 2011 last week. The priority date for applicants under 2A is moved back to January 1, 2008 because the demand for IV under the categpry has exceeded the visa number available. Therefore, if your priority date is between January 2008 and August 2010, you should apply for adjustment of status or consualr processing now, or you will be out of luck and have to wait again.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

在過去幾個月，2A類別的移民簽證申請人(永久居民的配偶或未成年的子女)的等待時間比以前大大減少。在2010年12月，如果2A類別的申請人的優先權日期是2010年8月1日或更早，他們便可以申請調整身份或透過國家簽證中心(NVC)到在海外的美國領事館申請移民簽證。

然而，2A類別的移民簽證申請人的等候時間將會回到從前的2年到3年左右。國務院在上星期發布了2011年1月的簽證公報。因為2A類別的移民簽證需求超出了配額，2A類別的移民簽證申請人的優先權日期被移回到2008年1月1日。所以，如果您的優先權日期是在2008年1月及2010年8月之間，那您應該在十二月底前申請調整身份或在海外的美國領事館申請移民簽證，否則您必須再等待多一些時間。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

The DREAM Act 夢想法案 (2)

2010-12-08T15:23:00.000-08:00

According to the Immigration Policy Center, the House will vote on the DREAM Act as well, but it differs from the Senate version in 2 significant ways:

- Instead of granting one ten-year conditional NIV status, the House version will divide the 10 years and grant the beneficiary two 5-year conditional NIV status.
- The House bill requires applicants to pay 2 separate fees for getting the conditional NIV status; the application fee for the first 5 years would be $525 and the second five years would be $2,000.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

眾議院今天晚上亦會對夢想法案進行表決，但是它與參議院版本有2處很大的差別

- 眾議院的版本會給予受益人兩次為期五年的有條件非移民身份，而不是授予一次十年的有條件非移民身份。

-申請人在申請有條件非移民身份的時候需要支付費用：首5年的申請費是$525，而次五年的申請費是$2,000。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

The DREAM Act 夢想法案

2010-12-07T20:57:00.000-08:00

The DREAM Act is a potential legislation that will provide thousands of illegal children and students a path to citizenship. It will likely be voted on December 8 in the Senate. The key provisions of the DREAM Act include the following:

-10 years of conditional non-immigrant status
- 3 years of permanent residency
- eligible for citizenship after 3 years of permanent residency

To be eligible for the DREAM Act, an undocument child/student has to meet the following requirements:

- the student must be 30 years old or younger when the Act is enacted;
- the student must have entered the United States before his or her 16th birthday;
- the student must have been present in the United States for at least five years immediately before the DREAM Act is enacted;
-the student must have graduated from high school or been admitted to a college;
- the student has not commited a serious felony or three petty offenses;
- the student is not inadmissible or deportable under specified grounds of the Immigration and Nationality Act (INA);
- the student must not be subject to a deportation order before turning 16; and
- the student cannot be guilty of persecuting others based on the grounds of current U.S. asylum law.

Finally, students who will receive legal status under this legislation is not eligible for government benefits and in-state tuitions.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

在12月8日參議院表決的夢想法案下，某些非法居留的學生可以獲得十年非移民的合法身份，然後可以申請綠卡，再過三年後可申請入藉。

只有符合下資格的學生才可透過夢想法案獲得合法身份：
-年齡上限為30歲以下
-在16歲之前進入美國
-在美國住滿至少五年
-已高中畢業或被大學取錄
-不能犯過一項重罪，或三項輕罪
-不屬於禁止入境或可被驅逐出境的類別
-不可在16歲之前被下令驅逐出境
-不能在過去參與迫害

再者，夢想法案的受益人不能獲得本州學費的優惠或其他社會福利。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Dual Citizenship 雙重國籍

2010-12-02T14:10:00.000-08:00

A Chinese newspaper article on dual citizenship.

美國政府雖不反對雙重國籍，規定入境美國時仍須使用美國護照

I-912 Fee Waiver

2010-11-30T17:25:00.000-08:00

USCIS has issued a new form named I-912 Request for Fee Waiver. Several categories of immigrants may file the form and request for a fee waiver. For a list of who may apply for a waiver, please read the instructions for Form I-912. In general, applicants who are filing for immigration benefits based on employment are not eligible for a waiver.

Normally, USCIS will grant the waiver if the applicants can show that they are receiving means-test benefits or are living at or under 150% of the federal povety guidelines. For those who are under financial stress such as unemployment or high medical expense, USCIS may grant a fee waiver if the applicant may provide sufficient information of the applicant's income and assets and a detailed description of the applicant's financial difficulties.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

移民局頒布了新的豁免費用申請表I - 912。幾個不同類別的移民可以遞交此申請表要求豁免遞交移民申請的費用。至於誰可以申請豁免，請流覽移民局關於I - 912表格的說明。一般來說，工作移民的申請人是不能申請豁免費用的。

在一般情況下，如果申請人能夠證明他們正在接受援助，或生活在低於聯邦貧窮準則150％以下的水平，移民局將給予豁免。對於那些活在財政壓力下，如失業或需要支付高額醫療費用的人士，如果申請人可以提供足夠的資料，包括申請人的收入和資產以及能夠詳細說明申請人的經濟困難，移民局或會給予豁免。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

More International Sudents Than Ever 國際學生創歷年新高

2010-11-17T16:41:00.000-08:00

An annual report released by the Insitute of International Education (IIE) suggests that in the academic year of 2009-2010, there were 690,923 international students in universities and colleges in the U.S. This is a record high number of international students in American higher educational instutions. In addition, 23.6% of all international students are from Mainland China (18.5%), Taiwan (3.9%), and Hong Kong (1.2%). In other words, almost every 1 out of 4 international student in the U.S. is from a Chinese-speaking town! You may read the entire report, named Open Doors, online.

What does this information mean? This could mean that the State Department is fairly generous in issuing student visas to foreign nationals. Granted, the report fails to mention how many F-1 applicants have been turned down by the State Department. Nonetheless, the increase in number of international students shows that international students are welcome in higher institutions and the State Department is willing to issue more F visas to allow international students to study in the U.S. If you have ever considered attending college/university in the U.S. and your situation permits you to do so, now may be a good time to do that.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

國際教育研究所(IIE)於星期一發表了一年一度關於國際學生在美國大專院校就讀的報告。該報告指出，在2009-2010學年期間，有690,923名國際學生在在美國的大學和學院就讀，創下歷年新高。另外，在國際學生當中，有23.6%來自中國(18.5%)、臺灣(3.9%)和香港(1.2%)。換句話說，幾乎每4名國際學生中就有一位是來自說中文的家鄉! 你可以在此處閱讀整個報告。

這代表什麼呢？這可能意味著國務院放寬了對簽發學生簽證的限制。雖然報告沒有提及有多少F-1申請被國務院拒絕，但是從國際學生總人數的增加可以知道，國際學生在美國的大專院校深受歡迎，而國務院亦願意簽發更多F簽證來配合這些院校的需求。如果你正考慮到美國上大學而你的情況亦允許你這樣做，那現在可能是個好時機！

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Optional Practical Training (OPT)

2010-11-02T14:44:00.000-07:00

Many international students would like to work in the U.S. after they graduate from an American institution. One of the easiest ways for them to do so is to apply for post-graduation optional practical training (OPT). The two most frequently asked questions regarding OPT are related to unemployment period and the nature of jobs that are permissible for an international graduate to take under OPT.

According to 8 CFR §214.2(f)(10)(ii)(E), an international graduate may not accumulate more than 90 days of unemployment during he OPT authorization. If the international graduate has obtained an STEM extension, the graduate may not accumulate more than 120 days of unemployment from the initial 12 months of OPT to the end of the STEM extension.

8 CFR §214.2(f)(10) states that "[a]n eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study." The Student and Exchange Visitor Program (SEVP), a program administered by Immigration and Custom Enforcement (ICE), has elaborated what kind of jobs are permissible under OPT in a Policy Guidance issued on April 23, 2010. These jobs include working for multiple employers, paid employments, unpaid employments/internships, and even self-employment. Moreover, the OPT student can work either as a W-2 worker or an 1099 independent contractor. Thus, an OPT student has a large variety of jobs that he/she can choose from. The Policy Guidance has explanation on each type of employment, so those who are interested in applying for OPT should carefully review it.

Finally, 8 CFR §214.2(f)(12)(i) requires an OPT student to report to his/her school officials if there is a change of name, address, or employment status. When to report these changes are different for those who are under the initial OPT and those who are under the STEM extension. For those who are under the initial OPT authorization, SEVP "recommends the student to report any change within 10 business days[.]" supra, 7.3.1. of Policy Guidance. In contrast, a student under STEM extension must report any change in name, address, employer, employer's address, and/or loss of employment. 8 CFR §214.2(f)(12)(ii)(A). In addition, the student needs to provide a validation report to his/her school official every 6 months during the STEM extension. 8 CFR §214.2(f)(12)(ii)(B).

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

許多國際學生希望在畢業之後留下來在美國工作。其中一個最容易這樣做的方法是申請實習工作證(OPT)。關於OPT的兩個最常見問題是與失業時間及工作的本質有關。

根據8 CFR §214.2(f)(10)(ii)(E)，一個國際畢業生不可以在他OPT期間積累超過90天的失業。如果國際畢業生透過STEM計畫延長OPT，那麼從最初的OPT到延期的結尾不可以積累超過120天的失業時間。

8 CFR §214.2(f)(10)規定OPT的工作必須與國際畢業生就讀的專業有關。負責學生及交換生計畫的SEVP表示，這些OPT工作包括為多個雇主工作、有薪的工作、沒有薪水的工作或者實習、以及自僱。另外， OPT學生可以是以W-2或者1099的身份工作。因此， OPT學生其實有很多工作可以選擇。SEVP發出的政策指引對每一種就業的形式皆有解釋，因此有興趣申請OPT的學生應細心閱讀該文件。

最後，8 CFR §214.2(f)(12)(i) 規定持有OPT工作證的國際畢業生如果更改了姓名、地址、或就業情況必須向學校報告。什麼時候要報告這些變動會因人而異。所有持有OPT的畢業生，應在上述變更後的10個工作天向學校報告有關的改動。透過STEM計畫延長OPT的國際畢業生但凡變更了姓名、地址、雇主、雇主地址、或失業，皆須要向學校報告，而且每6個月要向學校提供報告。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Definition of "American Firm or Corporation" for Preserving Residence Clarified

2010-10-25T14:06:00.000-07:00

On October 20, 2010, the Administrative Appeals Office (AAO) issued a precedent that clarifies the meaning of "American Firm or Corporation" in N-470 applications if the corporation in question is a publicly held company. Under current immigration law, a legal permanent resident (LPR) needs to file N-470 Application Preserve Residence for Naturalization Purpose if the LPR needs to be absent from the United States to work overseas for an employer that is an American firm or corporation. But how do we define "American firm or corporation" when the corporation is a publicly held company and its stocks are sold in the market? The AAO clarifies the law in this new precedent, Matter of Chawathe. In this decision, the AAO held that if a N-470 applicant can show that his/her employer is incorporated in the United States and its stocks are EXCLUSIVELY traded in the United States, then the N-470 applicant does not need to show that the majority of the corporation's shareholders are U.S. citizens (51% of shares are owned by U.S. citizens). As a result, many potential naturalization applicants who work for these publicly held and traded companies can have one fewer thing to worry about when they decide to work for their companies overseas.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

在2010年10月20日，負責處理移民局上訴的行政上訴辦事處(AAO) 判下新的案例，闡明在N-470申請中「美國公司」的定義。根據現行法例，永久居民/綠卡持有人如果會因被美國公司雇主派往海外工作而無法滿足在美國連續居住五年的入籍條件，那他們應該到移民局遞交N-470申請表。但是在N-470申請中如果美國公司是一家上市公司，其股份可以在市場公開買賣，那麼申請人應如果證明他的雇主是一家美國公司？行政上訴辦事處(AAO) 在Matter of Chawathe一案中裁定N-470申請人只要能夠證明他們的雇主是一家上市公司，而公司是在美國註冊，及其股份只可以在美國買賣，那就已經可以證明其雇主是一所美國公司。這對很多N-470的申請人真是一項喜訊！

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本所查詢。

Election and Immigration Law 投票與移民法

2010-10-18T13:47:00.000-07:00

The mid-election of 2010 is around the corner and many campaign volunteers are going around to ask people to complete voter registration and vote for the candidate/party they support. If you are not a U.S. citizen, please beware of this dangerous trap.

According to current law, only U.S. citizens are allowed to register and vote in a federal election in the United States. In other words, even permanent residents (i.e., green card holders) are not allowed to vote in a federal election, including presidential and congressional elections. If a non-citizen votes in a federal election, he/she is subject to deportation. A New York Times Article published on October 15, 2010 reports that a legal permanent resident from St. Kitts is currently being placed under deportation proceeding for voting in presidential elections in the past.

To muddy the waters, several municipalities allow legal permanent residents to vote in county or city elections. State legislatures can also adopt their own set of eligibility rules on statewide elections. Therefore, if you are a legal permanent resident and not a United States citizen, it may be wise for you to just stay at home and watch the elections on TV, unless the county office of where you reside have confirmed with you (preferably in writing) that you are eligible to vote as a non-citizen in a local election. Doing so can protect you and your family from unnecessary hardship.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

2010年的中期選舉快將來到，很多不同的志願者都在馬不停蹄地為自己支持的候選人拉票及呼籲他人登記當選民。但是如果您不是美國公民，投票可以變成一個陷阱。

根據現行法例，只有美國公民可以在聯邦選舉中投票。換言之合法永久居民/綠卡持有人是不能在如總統或國會等聯邦選舉中投票。如果非公民在聯邦選舉中投票，他們有可能會被驅逐出境。紐約時報在十月十五日中便報導有一位來自聖基茨島的合法永久居民因為曾經在總統選舉中投票而面臨被驅逐出境的危險。

令情況更糟的是有一些地區及市政府容許非公民在地方市政府選舉中投票。另一方面，各州政府可以自行訂立州政府選舉的選民資格。因此，如果您並不是美國公民，除非您得到您所居住的郡政府的確認(最好是書面的確認)，您可以在某次選舉中投票，否則您應該留在家中，避免投票及因投票而惹來的問題。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本人查詢。

2012 Diversity Visa Lottery Program 多國籍移民簽證計劃

2010-10-04T14:48:00.000-07:00

If you are interested in the diversity lottery program for the fiscal year of 2012, you may start submitting application from October 5 to November 3, 2010. Like last year, 50,000 immigrant visas will be available under the program for the fiscal year of 2012. Result of the lottery will be made available on May 1, 2011.

Please notice that there are a couple of changes in this year's program. First of all, the State Department is reverting the registration period from 60 days to 30 days. Therefore, you would have less time to submit an application for the lottery and should act quickly.

Second, the State Department will not mail a selection notice to those who have been selected under the program. Moreover, the Kentucky Consular Center will not mail an interview notice as well. Instead, online notification and interview notice will be made through the Entry Status Check function at dvlottery.state.gov.

Finally, it is free to participate in the lottery. Only those who have been selected for interviews will have to pay a fee at the U.S. consulate or embassy at the time of the interview. The interviewee will have to pay $745 USD ($305 for immigrant visa fee and $440 for diversity visa fee).

If you wonder how well of a chance you can win to get an immigrant visa, it is not very high. For the fiscal year of 2011, the chance of winning was 1/320, or 0.31%. This year would probably be more or less the same.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

如果你有興趣參加2012財政年度的多國籍移民簽證計劃，你需要在2010年10月5日至11月3日期間遞交申請表。與去年一樣，多國籍移民簽證計劃今年將會提供50,000個移民簽證配額。抽籤結果將會在2011年5月1日公佈。

申請人請注意今年美國國務院對計劃所作出的改變。首先，今年的申請期限由60天縮短至30天。因此申請人會比去年少了一些時間準備其申請。

其次，國務院不會將中籤通知書寄給被抽中的幸運兒。肯塔基領事中心也不會將面談通知書寄給符合資格的申請人。取而代之的是申請人需到國務院多國籍移民簽證計劃的網址，輸入在遞交申請表時得到的個人申請號碼，自行檢查是否被抽中及面談時間。

多國籍移民簽證計劃是免費參加的。只有符合資格而被選中面談的申請人需在前往美國駐海外的領事館面談的時候繳交$745美元的申請費(包括$305移民簽證申請費及格$440的多國籍移民簽證計劃申請費)。

透過多國籍移民簽證計劃成功被抽中的機會不算太高。在2011年的財政年度，有一千六百萬申請人爭奪五萬個簽證配額(每一個配額有三百二十個申請人爭奪)，即中籤機會大概有0.31%。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本人查詢。

USCIS Will Raise Filing Fees for Most Applications on Nov. 23, 2010

2010-09-24T08:06:00.000-07:00

On September 23, 2010, USCIS announced that it will raise filing fees for many different applications starting on Nov. 23, 2010. The most notable exception is naturalization application (N-400), which application fee will remain unchanged ($595). In addition, I-129F, petition for fiance(e) visa, will have a lower fee than the current fee after Nov. 23 ($340 instead of $455).

The new filing fees for some of the most common forms are as follows:

I-129 Petition for a Non-immigrant Worker, such as E, H, and L visa: $320-->$325
I-130 Petition for Alien Relative (to become an immigrant): $355-->$420
I-131 Application for travel document/advanced parole: $305-->$360
I-140 Immigrant Petition for Alien Worker (such as EB 1, 2, and 3): $475-->$580
I-485 Adjustment of Status Application: $930-->$985
I-526 Petition to be an Investor Immigrant (EB-5): $1435 -->$1500
I-601 Inadmissibility Waiver: $545-->$585
I-751 Petition to Remove Condition (such as marriage green card): $465-->505
I-765 Application for Work Authorization (such as OPT): $340-->380

For more information and the fees for other forms, please visit the website of USCIS at uscis.gov.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

Student Visa

2010-08-20T09:51:00.000-07:00

Summer break is almost over and the new school year is around the corner. If you are a non-U.S. citizen or permanent resident, unless you are a language student who plans to attend a short course for less than 18 hours per week, you need to obtain a F-1/M-1 status before you are allowed to attend a school in the U.S. A F-1/M-1 status may be obtained through consular processing by getting a visa or change of non-immigrant status in the U.S.

USCIS released a specific instruction titled "Special Instructions for B-1/B-2 Visitors Who Want to Enroll in School" yesterday and the instruction is a good reminder of the above-said policy. If you are in the U.S. on a B-2 visitor visa, you must not enroll in a school until your change of status application to a F-1/M-1 student is approved by USCIS. Attending school while you are a visitor is not only a violation of your status but will also make you ineligible to change your status to a F or M status.

On the other hand, if a request to change from B-2 to F-1 status is made within 60 days of a B-2 entry, USCIS will assume that the visitor has a preconceived intent to come to the U.S. to study and the request would likely be denied, especially if the alien has obtained an I-20 before his/her entry as a B-2 visitor.

Therefore, if you want to study in the U.S., you must plan carefully so that you will not be caught off guard.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

USCIS Ombudsman Report (2)

2010-07-19T16:17:00.000-07:00

The Ombudsman recommends USCIS provide an option for users to talk to a center representative immediately after reaching the main menu of the toll free number of USCIS. If this recommendation is adopted, it would help a lot.

Any one who has ever used the USCIS toll-free hotline would have frustrating experience to tell you. I still remember the first time I called that hotline, I had waited for over 45 minutes before connecting to an agent. In the last year or two, the waiting time had been significantly cut. Last time when I called I had to wait for about 3 minutes.

Despite this improvement, one thing I do not understand is why we cannot have an option to choose to talk to a representative in the main menu. A lot of times I have to randomly choose an option and either press the wrong button or ignore the instructions before I get connected to a USCIS representative.

Although I hope this option to immediately connect to an officer will come true, I hope users of the toll free hotline will not abuse it. If users want to find out their case status or have simple questions answered, I hope they will utilize the website of USCIS and find out the answers to their questions there. This will help maintain the efficiency of the hotline and allow those who really need the assistance of a representative to get help with the shortest amount of time possible.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please call my office and schedule an appointment.

Women as a Particular Social Group for Asylum Purposes

2010-07-15T10:58:00.000-07:00

A while ago in one episode of "Law and Order: Special Victim Unit", ADA Alex Cabot and Detective Olivia Benson had a discussion on how gender is not a basis for political asylum. Well, this may no longer be the case in states under the jurisdiction of the 9th Circuit, at least for now. On July 12, 2010, the 9th Circuit of ruled in a case named Perdomo v. Holder that being a woman could fall under the definition of "membership in a particular social group" and be eligible to claim political asylum.

Generally, under current law, an asylum applicant has the responsibility to show that the applicant either had suffered past persecution or will face future persecution if the applicant returns to his/her home country. Moreover, the persecution must be based on race, nationality, religion, political opinion, or membership in a social group.

In Perdomo, the petitioner is a female from Guatemala. Ms. Perdomo applied for political asylum and her primary argument was that because of the high murder rate for women in Guatemala, she had established well-founded fear of future persecution. Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") denied her asylum application because they did not agree that being a woman from Guatemala was a sufficient to prove fear of future persecution based on membership of a social group. Specifically, the BIA agreed with the IJ that gender alone was "too broad to qualify as a protected social group".

The 9th Circuit used a two-prong approach it had developed in a 2000 case to decide whether being a woman alone can fall under membership in a particular social group for asylum purpose. The first prong is to decide whether members of the "group" are united by "a voluntary association" or "innate characteristics." The 9th Circuit further explained that "innate characteristics" is a fundamental and common traits among the members that they either cannot or should not be asked to changed. The second prong is that the group has to be persecuted because of the innate characteristics. Based on this two-prong test and some precedents from the 9th circuit, the court reached the conclusion that females in a particular country could form a particular social group. Furthermore, the court ruled that the size and breadth of a group alone are not determinative.

This is certainly an interesting case and could possible open the door for many asylum applicants who cannot establish fear of persecution based on the other 4 grounds. We will see the implication of the ruling in the future.

Disclaimer: Information included in this page does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please schedule an appointment with my office.

USCIS Ombudsman Annual Report (1)

2010-07-13T13:19:00.000-07:00

On June 30, USCIS Ombudsman January Contreras released the annual ombudsman report. The report has some interesting findings and suggestions and I will discuss some of them in this and next few entries.

One interesting observation the Ombudsman report points out is that the demand for family-based immigrant visas is "very low" in the previous 15 months (p.32). In other words, immigrant visas available to petitioners who have a current priority date exceeds the number of petitioners who actually go to the consulate to apply for an immigrant visa. Why do not applicants, after waiting for so long to have their priority date to become current, go to apply for the actual visa when it becomes available?

Although the actual reasons are not clear, the ombudsman report makes a few guesses, such as change in health, employment, and family situations or financial and economic concerns (p.32). In addition, many petitioners choose not to leave the United States and return to their home country to go through consulate process because of their illegal or problematic immigrant status (p.33). Because many of the low demand, many visas number become unused.

This situation highlights the needs of a comprehensive immigration reform as soon as possible. It is obvious that the wait for these applicants, who have parents, siblings, and children that are citizens and legal permanent residents of the U.S., is simply too long. For example, according to the August Visa Bulletin released yesterday by the Department of State, unmarried children over 21 years old and born in Mexico to a U.S. citizen/legal permanent resident have to wait for about 18 years before they are eligible to apply for a green card. If they get married, they will have to wait in a different category or may even lose their eligibility to migrate to the U.S. (currently there is no immigrant visa category for married children of lawful permanent residents)!

Thus, we can see there is a real need to eliminate this backlog and allow family members of naturalized U.S. citizens and permanent residents to be reunited with them in a more effective manner. Of course some people will argue that those citizens do not need to choose to come to the United States at the first place. But given how many science and engineering graduates in our country are foreign-born and how many of these naturalized citizens gain their residency in the U.S. through jobs that need their advanced skills and knowledge, we simply cannot afford to tell them to all go home or stop coming, then expect our country to remain the same in innovation, technology research, and long-term development.

Meanwhile, it is wise for petitioners to remain alert to the monthly visa bulletin so they can apply for an immigrant visa at their local consulate as soon as a visa number is available to them. If there are concerns regarding prior violation of immigration status or change of family situation, it is a good idea to talk to an attorney instead of simply forgoing the chance to apply for a visa. Many attorneys are willing to give free initial consultation and will keep the content of their consultation confidential, so it would not hurt to talk to them.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.

H-1B

2010-07-08T10:27:00.000-07:00

Every summer, a lot of college graduates enter into the job market. Given the state of the economy, many of the graduates are having a hard time to find a job. This is particularly true for international graduates.

In most situations, prior to their graduation, international students usually apply for work authorization under the optional practical training (OPT) program and then seek employment with their OPT. However, an OPT authorization is only valid for 12 months (and an additional 17 months for students who have graduated from science, technology, and math majors). As a result, many employers are not willing to consider international students because they are not willing to hire someone who may have to leave the job in 12 months or simply do not want to pay the immigration fees to sponsor an international student.

To make things worse, a student under OPT cannot accrue more than 90 days of unemployment. Therefore, unless an international student can find some kind of work within 3 months of the start date of his/her OPT, the student may risk falling out of status. Thus, many international students would have to take low-skill and/or low-salary jobs during their OPT while they seek long-term employment.

For those who are lucky enough to find an employer who is willing to hire and sponsor their work visa petition (usually H-1B visa for college graduates), there is still no guarantee that they will be able to stay in the U.S. and continue to work after their OPT authorization expires. Prior to 2009, H-1B visa applicants usually had to file their petition on the very first day USCIS start accepting petition (usually April 1) because Congress has set a quota for the number of H-1B visas that can be issued in every fiscal year. If an applicant failed to do so, his/her application might not even be considered if USCIS had received sufficient petitions to meet the annual quota. Since 2009, fewer petitions have been filed because 1) fewer employment opportunities are available; 2) fewer employers have the resources to sponsor international graduates; and 3) companies that have received TARP money from the government may not sponsor H-1B petitions.

Although there are fewer petitions, that does not mean approval is automatic. In order to improve the chance of approval, an H-1B applicant should do the following:

A) an applicant should ensure the proposed employment requires a professional to fill it, such as someone with a college degree. If in doubt, it would be wise to check case law and BIA precedents to see whether there are any cases that can support the proposed employment to be qualified for H-1B.

B) An applicant should show a strong connection between the applicant's college education and the proposed job duties. If an applicant is qualified to perform the job duties without his/her college education, then USCIS will likely reject the application. On the other hand, if the applicant's professional qualifications have nothing to do with the applicant's job duties, it is also difficult to get an H-1B visa approved. For example, if a student majored in chemical engineering but his proposed job duties are linguistic in nature, it may be difficult to get an approval by USCIS.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.

Can Money Buy a Visa to Live in the U.S.

2010-05-27T14:34:00.000-07:00

EB-5 has traditionally been the visa category that allows foreigners to get a green card. However, many foreigners, especially small business owners and small investors, find it difficult to put so much money (at least 500k and 1 million USD in general) at risk in exchange for a visa. Congress has made different efforts to reform the investor visa category, such as the Start Up Visa Act that was introduced in February 2010. But before this bill becomes law, foreigners are bound by the current rules and regulations.

So the question is: what can small owners do to come and work in the U.S. RIGHT NOW? Some short term non-immigrant visas may worth taking a look if you are really interested in coming to the U.S. through investment. The most obvious choice would be the E-2 visa, which allows foreigners to come and work in the U.S. for 2 years if they can invest a substantial amount of money in the U.S. and benefits the economy of the U.S. However, to qualify for an E-2 visa, the applicant must come from a country that has a trade treaty with the U.S. Thus, for example, nationals of China (PRC) will not be eligible to come to the U.S. through an E-visa.

Another common way for investors to come to the U.S. is through the L-1A visa. Some foreigners may consider expanding their overseas companies into the U.S. by setting up a branch or an affiliate in the U.S. The government currently allows investors who act as executives to enter into the U.S. and manage their new branch or affiliate company. Executives for new entities will get a visa that is valid for 1 year and can be renewed for up to 7 years. In additional, current law allows an L-1 visa holder to have an immigrant intent while in L-status, i.e., may apply for a green card and/or adjustment of status while the investor is in L-1A status.

Although these two visas are non-immigrant visas, they may actually serve the interests of investors better. Some potential investors I have talked to actually do not have the intent to move and live in the U.S. permanently. As a result, getting an E or L visa may be a better alternative because the amount of money needed is significantly lower than an EB-5.

Disclaimer: information included in this post does not constitute as legal advice and receipt of this information does not constitute attorney-client relationship. For specific inquiries, please contact my office for an appointment.

Incentives to be Here Illegally

2010-05-19T13:27:00.001-07:00

Immigration has definitely been a hot issue ever since Arizona passed SB 1030. However, we need a basic understanding of the law before we can engage in a civil and informed debate, regarless of which side you are on.

First of all, we need to understand who illegal immigrants are. There are three kinds of illegal immigrants: 1) foreigners who enter the U.S. without proper inspection by our custom and immigration officers; 2) foreigners who entered into the U.S. legally but have failed to leave the country after their authorized period of stay expires and 3) those who does not comply with their condition of stay in the U.S., such as students working off campus without authorization.

Second, we need to understand what it means to violate a law and the consequences of different violation. Obviously, there are different kinds of law. Laws that are enacted by the government to protect the society as a whole are generally criminal law. On the other hand, laws that are enated to protect a specific group of citizens and customers are generally civil laws, such as contract. Of course this is a pretty basic generalization and sometimes the two interwine with each other. When someone violates a criminal law, such as committing a murder, the government, i.e., district attorney, will file the charges against the suspect. If the government prevails, the defendant would usually serve time behind the bars. In contrast, violation of civil law does not impose jail time usually. Instead, the offending party would have to compensate the victim in monetary terms.

Third, our legal system has long been a balancing act between mercy and justice. A violation of the law does not automatically put the offending party into jail or impose a fine. Instead, the offending party can raise some so-called affirmative defenses to justify their violation. A classic example would be to kill someone when the defendant himself is in jeopardy of losing his own life if he did not kill.

Our immigration law is a very unique set of law. We punish those who violate our immigration law by expelling the violators from our country. No jail time or fine is imposed for violating our immigration law. In addition, we have allowed affirmative defenses and afford those who are in our country due process to present their case and why they should not be deported in most situations.

I think these are some of the facts we need to understand before we engage in a debate of what we should do with our immigration system. Some people say illegals are illegals and they should be deported. Saying so is simply to saying criminals are criminals and they should be jailed without trial. However, our system does not work this way. In fact, it is the Constitution, which we support and are proud of, that says we cannot put people in jail and expel them out of this country without due process.

Moreover, as much as I hate to admit that, but I think our immigration system provides far too many incentives for people to disobey it. Take a married couple for example. I doubt how many of us would ask our date whether he/she has legal papers. Moreover, if you marry a legal permanent resident/green card holder, you are subject to immigrant visa quota and have to wait for a few years to gain residency in the U.S. Because of the wait, you may have to make a hard choice when your current visa or authorized period of stay expires: do you go home and leave your spouse behind or do you break the law but stay with your family? Why can't our law treat spouses and minor children of permanent residents the same as US citizens, namely giving them residency right away without imposing a quota system? Can you see why our immigration ststem helps create illegals?

Our immigration system does not punish employers who hire illegal aliens hard enough. This is simply a supply and demand calculation. The benefits and costs saved for hiring illegal workers simply outweigh the penalties of breaking the law. Although companies who hire illegals can be subject to criminal liabilities, the burden of proof is often so high that prosecutors simply cannot meet. Again, our system encourages people to break the law.

People often complain that our federal government fails to enforce our immigration law. But how is the federal government going to enforce the law when they do not have funds to hire agents and border patrols that could safeguard our coastline or our land border? Are we willing to pay more taxes and expand our government in the area of immigration?

I think we need to enforce our law, but I also think we need to enact laws that will not encourage people to disobey it. Also, I am not sure how much our country is willing to sacrifice to provide the resources that our immigration authority needs to enforce the law.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not constitute attorney-client relationship. For specific inquires, please contact my office for an appointment.

Arizona's Pending Immigration Bill

2010-04-19T13:14:00.000-07:00

The Bill
By now most people have heard about the pending legislation regarding illegal immigration in Arizona. The most controversial features of S.B. 1070 include the following:

- allows a state, county, or town official/agent to inquire the immigration status of an alien if the official/agent has reasonable suspicion that the alien is not in the U.S. legally;
- makes it a criminal trespass if an alien fails to carry proof of his/her legal status in any private or public land in Arizona;
- makes it a crime to transport an illegal alien in Arizona, if the government can prove that the driver knows or reckless disregards of the alien's immigration status;
- allows private citizens to sue the state, county, city, or town for not enforcing federal immigration law.

Problems
While I think we should enforce our federal immigration law, I am very concerned on the negative effects this bill has on people who are in the U.S. LEGALLY.

Vague Definition
First of all, there is no clear definition of "reasonable suspicion." Is speaking English with an accent good enough to cast reasonable suspicion on the immigration status of a person? If yes, then I may be stopped a lot by police officers when I visit Arizona!

Second, how do you define "reckless disregard" of an alien's immigration status? If someone at school/church asked me to give him a ride, should I inquire about his immigration status before saying yes? For example, if a boy who came from Australia had overstayed his visa in the U.S. since age 2 and speaks English with no accent, I probably would not know or check his illegal status and I could get arrested for giving him a ride. What about driving an alien who had overstayed his visa because his flight to go home was cancelled due to natural diasters like earthquake or volcanic ash? Because I knew of his illegal status, I could be arrested when I drove him to the airport and sent him home!

Big Inconvenience, Could Even Be Unconstitutional
It is even more problematic to require an alien to carry proof of legal status whenever he/she is in Arizona. It is true that federal law requires permanent residents to carry their green cards with them wherever they go. But what about citizens? Do all citizens need to bring their birth certificate, naturalization certificate, or passport when they go to shop at a local grovery store or their neighbor's home? If yes, then it would be a big inconvenience for any citizen who lives or visits Arizona. If only naturalized citizens need to do that, then we are definitely making them second-class citizens and it is a clear violation of the equal protection clause of the 14th Amendment. What about non-immigrant visa holders like students or H-1B workers? Do they need to bring their passports or USCIS documents with them wherever they go in Arizona? This could particularly affect those who are visiting from other states. For example, it is totally possible for an H-1B worker who worked in the U.S. after graduation to drive to Arizona to visit the Grand Canyon and got arrested for not carrying his H-1B approval notice to prove his current legal status when he stopped at a gas station! To make things even worse, because it is a crime for not carrying his proof of legal status in Arizona, the poor guy could be deported and barred from entering the U.S. in the future! That does not make sense to me and I hope it will never happen.

Now some people may argue that a driver's license would be a good enough proof for legal status. However, as of 2009, four states still issue driver's license to illegal aliens. Moreover, many states have issued driver's license to students and temporal visitors as long as they can prove their legal status at the time of issuance. Therefore, aliens who have overstayed their visas can nonetheless hold valid driver's license.

Hurting Arizona Financially
Needless to say, allowing private citizens to sue their local government for not enforcing immigration law and attaches civil penalties to it would drain the financial resources of the local government in Arizona. Can a resident of Arizona sue the city officials for not arresting my neighbor who has overstayed his visa? If yes, then people who are running out of money could find a new way to make some.

This legislation could potentially hurt tourism in Arizona as well. Aliens, legal or not, may want to avoid Arizona to ensure they are safe. Would that be a good thing for towns who rely on the millions of tourists who visit the Grand Canyon and other scenic places in the state? I think so.

Conclusion
I know some of the examples I have used are a bit extreme, but those are possible and undesirable effects of the AZ legislation. We should not tolerate any violation of law, but this particular Arizona legislation is going to create more problems than solving them.

Disclaimer: Information included in this post does nto constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquries, please contact my office for an appointment.

H-1B Process: Are You Ready to File?

2010-02-26T15:10:00.000-08:00

As April 1 is only a few weeks away, those who are lucky enough to have a job offer and find an employer that is willing to petition an H-1B application should start putting their application together NOW. The following is a brief explanation on the process of filing an H-1B application.

Starting from this year, the Department of Labor (DOL) has centralized the process of prevailing wage determination (PWD) for H-1B. You should file ETA Form 9141 through iCert (icert.doleta.gov), a website run by the Department of Labor. Applicants should expect to get the prevailing wage determination back in about 60 days. That means if your employer has not filed a PWD yet, you most likely will not be able to file your H-1B application by April 1.

While your are waiting for your PWD, your employer should inform other U.S. workers that you, an international worker, will be hired. Usually a notice on the company's bulletin board or an email is sufficient (hard notice of soft notice), depending on the usual channel of communication between the employer and the employees. You should receive a copy of the LCA as well.

After informing the U.S. workers about the intent of hiring an international worker and getting the PWD back, your employer should file a Labor Condition Application (LCA) with the DOL through iCert. A LCA will generally be approved within 7 business days unless something in the LCA is inaccurate or incomplete, which will require the employer to correct the information and resubmit the LCA.

After the LCA is approved, you may submit your I-129 application with H-supplement pages filled out and other supporting evidence, such as documents that prove your qualifications.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.

Advance Parole

2010-02-01T14:23:00.000-08:00

If you are applying for adjustment of status (AOS) and need to leave the U.S. before the AOS application is approved, please remember to apply for and obtain an advance parole before you leave the country. The fee of applying an advance parole is included in your adjustment of status application, so you do not have to pay extra to apply for it. However, you need to file an I-131 along with your I-485 to take advantage of this fee arrangement.

If you are a legal permanent resident but need to leave the country for longer than 180 consecutive days, you may also need an advance parole to return to the U.S.

Before an advance parole application is granted, you need to complete a biometric, i.e., have your fingerprint taken by the Application Support Center. If you fail to attend your biometric appointment, your advance parole application may be denied based on abandonment.

Usually an advance parole application would be processed by USCIS within 90 days. If you have not received a decision within 90 days, you may contact the local office of USCIS to follow up on your application.

What if you have an emergency and cannot wait for 90 days? You need to bring documentations to your local USCIS office and show why your advance parole application should be expedited. If the local USCIS office determines that you have a legitimate need to get an advance parole right away, it will likely process and issue an advance parole to you within a few hours.

In short, please remember you have to apply for an advance parole while you are in the U.S and do not leave the country until you have obtained the advance parole.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquiries, please contact my office for an appointment.

F-1 International Academic Students

2010-01-29T12:51:00.000-08:00

In general, there are a few requirements for an overseas student to apply for a F-1 visa and study in an academic institution in the United States. These requirements generally include:

1. The applicant of a F-1 visa has a foreign residence outside the U.S. and the applicant has to show he/she intends to return to that residence after finishing school in the U.S.

2. The applicant is a bona fide student and is not using the visa for purposes other thana ttending school (such as waiting for an immigrant visa number).

3. The applicant must obtain an I-20 issued by the school he/she intends to enroll.

4. The applicant has sufficient financial resources to sustain his/her study in the U.S.

5. F-1 students are not allowed to attend public high schools for more than one academic year and have to pay the school district/board their tuition prior to issuance of an I-20.

However, meeting these requirements alone may still be insufficient for you to attend a school in the U.S.

Recently, my alma mater, Brigham Young University (commonly known as BYU), has decided to enforce a new policy regarding F-1 international students. The policy requires all new international students (including freshman or transferred students) to pay a $4,000 deposit to an escrow account upon admission and prior to the issuance of an I-20 for visa application. The rationale of the University is that this policy will ensure international students have sufficient funds to complete their education in the U.S.

This will undoubtedly make it harder for international students to attend my alma mater, but it is not illegal for a school to have admission requirements in addition to the ones set forth by the law. Thus, if you are an itnernational student, be sure to check with the institution you plan to enroll carefully to see whether they have specific admission requirements for international students. Otherwise, you may be disappointed or even abandon your plan to study in the U.S.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish an attorney-client relationship. For specific inquiries, please contact my office for an appointment.

Facebook Link

2010-01-10T16:19:00.000-08:00

Please visit my facebook page, where I often post links and articles from other sources related to immigration law. To access it, please click the facebook badge on the right handside of this blog.

Global Entry Program

2009-12-11T13:54:00.000-08:00

U.S. Cutsoms and Border Protection (CBP) within The Department of Homeland Security has started a pilot program called "Global Entry Program." By paying 100 dollars and going through a rigorous background check beforehand, a U.S. citizen, national, or permanent resident may go through immigration by scanning a passport/permanent resident card, providing a fignerprint, and filling out custom declaration form at a kiosk at major airports in the U.S. without waiting in line to be inspected by an immigration officer. For more information, please go to cbp.gov/xp/cgov/travel/trusted_traveler/gloabl_entry/.

The information provided above is not legal advice and receipt of the information does not establish an attorney-client relationship. For specific inquiries, please contact our office and schedule an appointment.

Beware of Immigration Fraud

2009-12-04T13:33:00.000-08:00

Earlier this week, worldjournal.com published a news story about how a Chinese female attempted to get a green card by marriage sham but failed. According to the article, the lady agreed to pay her lawyer $30,000 for getting a green card through marriage sham. Later on the lawyer had sex with her. Then the "husband" demanded to have sex with her but she denied. To take revenge, the "husband" did not cooperate with the lady during the USCIS interview and her application was subsequently denied.

A few principles can be learned from this story, regardless of its truthfulness. First, an alien should never attempt to get a green card through any kind of fraud. Commiting immigration fraud is a criminal offense and can be penalized heavily if USCIS discovers that.

Second, a client should not feel threatened or pressured to have sex with a lawyer. Rule 1.8(j) of the American Bar Association's (ABA) Model Rules of Professional Conduct (2009 Edition) states that "[a] lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the attorney-client relationship commenced." Therefore, a lawyer is likely violating an ethical rule when he/she demands or uses any threat to have sex with a client. If you ever encounter such situaton, you have the right to file a complaint and report that to the bar association in which the lawyer belongs to.

Third, your attorney's fee should be reasonable. Rule 1.5(a) of the ABA's Model Rules of Professional Conduct (2009 Edition) states that "[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." Therefore, it is your right to compare the rates of different attorneys before deciding which one you would like to hire. Even after you hire an attorney, your attorney should not charge you for a fee that is unreasonably high.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this page does not establish an attorney-client relationship. For specific inquries, please call my office for an appointment.

Prematurely Approved I-485 排期未到的 I-485

2009-11-19T12:35:00.000-08:00

While I was reading the news this morning, I came across an article at worldjournal.com. The article mentions that USCIS has mistakenly processed some I-485 applications that have not met their priority dates, and how those applicants may lose their green card because of the mistake.

This may be confusing to some green card applicants. First of all, not all green card applicants need to worry about the idea of priority date. For example, immediate relatives of U.S. citizens can concurrently file their I-130 and I-485. Another example is green card applicants who apply under a category of which visa numbers are current and they can apply for adjustment of status immediately after their I-140 is approved. In short, only those who apply for a green card but 1) are subject to the annual visa quota; and 2) no visa number is available immediately to them will be affected by the priority date.

However, if USCIS has approved your I-485 even though your priority date is not curent, it does not automatically mean it is a mistake. In September 2009, the Ammerican Immigrant Lawyers Association (AILA) released a practice pointer and suggested that in some instances USCIS had found, retained, and used a priority date that the immigrant and his/her representative were not aware of. See AILA InfoNet Doc. No. 09092467 (posted Sept. 24, 2009).

Therefore, if you think your I-485 is prematurely approved, contact an immigrant lawyer and have your lawyer file a liason inquiry with USCIS through AILA. That may save you some troubles in a long run and you will not need to worry about losing your green card.

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this information does not establish an attorney-client relationship. For specific inquiries, please contact my office and schedule an appointment.

今天早上當我上網讀報的時候，讀到世界新聞網的一篇報導。報導提及移民局錯誤地審批一些優先日期未到的I-485申請，而這些獲得批准的申請人可能會被收回綠卡。

有些綠卡申請人可能不太明白什麼是優先日期。不是所有綠卡申請人都需要擔心優先日期的問題。舉例來說，美國公民的直屬親人可以同時遞交及I-130及I-485的申請。另外，如果工作綠卡的申請人的申請類別之簽證配額尚未用盡，那麼他們的I-140申請獲得批准後亦可馬上申請調整身份。換句話說，只有1)受到簽證配額限制及2)申請類別的簽證配額已經用盡的綠卡申請人才會受到優先日期的影響。

可是優先日期未到而獲得批准不一定代表移民局犯錯。美國移民律師協會在今年9月就曾經表示，移民局在某些案例中，找到及使用一個連申請人及他們的代表都不知道的優先日期！見AILA InfoNet Doc. No. 09092467 (posted Sept. 24, 2009).

所以，如果你收到優先日期未到而獲得批准的通知書，你應聯絡一位移民律師，請律師透過美國移民律師協會向移民局作出書面查詢。這樣可避免將來不少的煩惱及擔心失去綠卡。

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本人查詢。

P.S. If you can read Chinese and would like to read the entire article published by worldjournal.com, it can be found at:

上述世界新聞網的文章可在此連結找到：

http://www.worldjournal.com/pages/full_us/push?article-%E6%8E%92%E6%9C%9F%E6%9C%AA%E5%88%B0%E7%8D%B2%E7%B6%A0%E5%8D%A1+%E5%B0%87%E8%A2%AB%E6%94%B6%E5%9B%9E%20&id=4553185-%E6%8E%92%E6%9C%9F%E6%9C%AA%E5%88%B0%E7%8D%B2%E7%B6%A0%E5%8D%A1+%E5%B0%87%E8%A2%AB%E6%94%B6%E5%9B%9E&instance=usbull

Should I Migrate to the United States? 我應該移民到美國嗎?

2009-11-17T12:32:00.000-08:00

Before knowing how to get a visa and migrate to the United States, you should evaluate your situation carefully and decide whether moving to the U.S. is good for you and for your family.

First of all, money is important. Do you have the financial resources to go through the legnthy and expensive immigration process? Do you have the money to move to the U.S.? If you cannot find a job in the U.S. right after you come here, will you and your family be able to survive?

Second, can you speak English? You may be able to get by without knowing much English in some parts of the country, such as New York City and San Francisco, but it may be difficult for you to look for a job that you like if you cannot speak English. Also, if you cannot speak English, you may need to rely on others and become less self-reliant.

Third, what are your employment options? Will you be able to find a job that is similar to what you are doing in the U.S.? More importantly, will your education degrees be recognized here in the U.S.?

Fourth, do you have family ties and friends in the U.S.? Many immigrants find it difficult to live in the U.S. when they first arrive because they have no friend and family around.

Fifth, if you have young children, education is going to be a huge factor to consider. Do you want to send your children to public or private school? What are the options for your children?

Sixth, if you are prone to medical issues, insurance is definitely a huge factor to consider. Are you going to purchase health insurance? If not, will you be able to cover the medical bills on your own? Although Congress is debating a comprehensive health reform bill, do not count on it until it has become law.

The above factors are only some of the basic considerations. You really need to think and plan carefully before deciding to migrate to the U.S.!

Disclaimer: Information included in this post does not constitute as legal advice and receipt of this information does not establish an attorney-client relationship. For specific inquiries, please contact my office and schedule an appointment.

知道移民美國的方法之前，首先要考慮移民美國對你的家庭是否明智。

金錢是最重要的考慮因素。你有能力應付昂貴及漫長的移民程序嗎？你有經濟能力應付移居美國的費用，如機票、把家具寄到美國、購買新家具、汽車等嗎？如果抵達美國後不能夠馬上找到工作，你有方法提供家庭的需要嗎？

第二，你會說英語嗎？或許在美國某些地方你可能不懂英語都不會有太大問題，如紐約或舊金山﹝三藩市﹞，但不懂英語可能會成為找工作的障礙。而常常需要找其他人翻譯，也會令你失去自立的能力。

第三，找工作。你在美國會找到與你目前相約的工作嗎？你的學位在美國會被承認嗎？

第四，你在美國有朋友或家人嗎？沒有朋友或家人照應對很多新移民都是一件困難的事。

第五，如果你有小孩，教育是一項重要的考慮因素。你會把小孩送到公立或是私立的學校嗎？你打算搬到的地區學校網如何？

第六，如果你有醫療上的需要，你可以負擔嗎？你會否購買醫療保險？

以上只是一些基本要考量的因素。決定移民美國之前真的要想清楚！

以上資料僅供參考之用，並非法律意見。如有個別問題，請致電本人查詢。

Comprehensive Immigration Reform in 2010?

2009-11-13T14:04:00.000-08:00

Homeland Security Secretary Janet Napolitano today said that the Obama Administration would start pushing comprehensive immigration reform to overhaul the current system in 2010. She also mentioned that the reform would be three-prong: 1) punishing illegal alien and those who hire them; 2) streamlining the system for legal immigration; and 3) providing a path to those who are already here illegally a path to citizenship.

The second prong is definitely the key: the path to legal immigration needs to be fast, simple, and affordable. I know many people who overstay their visa or work in the U.S. illegally while they are waiting for a visa number to be available. If the path to legal immigration is fast enough, these people will not become illegal immigrants at the first place.

國土安全局局長納波妮撘諾今天表示，歐巴馬政府將在2010年推動全面的移民法例改革。她強調改革會分三方面，包括1)嚴打非法移民及聛用他們的僱主；2)簡化合法移民的程序；及3)提供已經在美的非法移民調整身份成為公民的方法。

第二點是全個計畫的核心：合法移民的程序應該簡單、快捷、收費亦應該合理。很多逾期居留的人其實都只是在等待移民配額。快捷的移民程序可以避免這些人成為非法移民。

Mentally-illed Detainees

2009-09-10T20:42:00.000-07:00

The New York Times published an interesting article today:

http://www.nytimes.com/2009/09/11/nyregion/11mental.html?hpw

I think our immigration system should treat detainees with dignity. I understand our immigration judges have many cases to handle a year, and it is perhaps difficult for them to examine the detainees too carefully. I understand that the government may have examined the mental capacity of the detainees when they are first arrested. However, what if a detainee has developed mental illness when he/she is detained? Should there be someway to access the mental capacity of a detainee before a deportation proceeding? I think the answer should be "yes."

Schumer: Immigration bill to be ready by Labor Day - Boston.com

2009-07-08T22:06:00.001-07:00

Schumer: Immigration bill to be ready by Labor Day - Boston.com

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High-powered panel pushes immigration overhaul - 2008 Presidential Campaign Blog - Political Intelligence - Boston.com

2009-07-08T21:59:00.001-07:00

High-powered panel pushes immigration overhaul - 2008 Presidential Campaign Blog - Political Intelligence - Boston.com

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Objective of My Blog

2009-06-29T20:18:00.000-07:00

Welcome! I would like to use this blog to comment on the latest trend and development of U.S. immigration law.