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

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

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)

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

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)

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

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.

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.