Immigration Visa Lawyer Blog

If you are one of those people who have put off applying for naturalization because you have voted as a lawful permanent resident, then you might not realize that you could be eligible for naturalization even though you voted unlawfully. This article addresses the narrow case of when a lawful permanent resident who is eligible for naturalization despite having voting unlawfully as a green card holder.

The Problem: Unlawfully Voting as a Green Card Holder
A lawful permanent resident may not vote. If you have voted as a green card holder, you are potentially removable from the U.S. and will probably be ineligible for naturalization. The exception in this article is very limited and may not apply to your case.

Unlawful Voting Exception for Naturalization: a Three-Part Test, or is it?
Under a Yates Memo from 2002, an immigration officer is not supposed to deny a naturalization application even though a lawful permanent resident alien states that he or she voted unlawfully when the following are true:

1. Both parents were U.S. citizens when the alien voted unlawfully,
2. The alien permanently resided in the U.S. prior to his or her 16th birthday, and
3. He or she "reasonably believed" at the time of the unlawful voting that they were a U.S. citizen.

The third factor appears to be subjective, but has objective elements. According to the Yates Memo, an immigration officer must assess by "the totality of the circumstances" to determine whether the alien "reasonably believed" at the time of the unlawful voting that they were a U.S. citizen. The officer must weigh the length of time the applicant spent in the U.S., against the age when the applicant for naturalization entered the U.S. as a lawful permanent resident. If you entered the U.S. as an LPR as a very small child and you have remained here continuously, you may have a good argument that your mistake was reasonable. This situation requires an experienced lawyer's legal opinion after a thorough review of the facts and circumstances.

If you are eligible for the exception, you will not face deportation. If the officer doesn't believe you "reasonably" thought you were a citizen, there is still hope if the form of prosecutorial discretion. This is a subject for another article, however.

If you qualify for the exception, you are no longer removable.

If you filed an employment-based adjustment of status (I-485) application between July 1, 2007 and August 17, 2007, you were definitely not alone. Approximately 325,000 adjustment (I-485) applications were filed during this period. This is because the visa bulletin briefly became current for all employment-based visa categories, except "other workers." Since the visa bulletin retrogressed, many of these adjustment applications reverted to a "pending" status. Many of our clients have asked what they can do in this frustrating situation.

Adjustment (I-485) Switching: The Permissible Line-Jumping
This article addresses the issues of transferring I-485 applications (in a process called "I-485 switching," transferring adjustment applications, or adjustment conversion) to a new or subsequent family or employment-based immigrant visa petition. Thousands of people are eligible for this benefit and didn't even know it! These procedures are invaluable to aleviate the backlog created by the onslought of I-485 applications sent to the Service Centers in 2007. Properly done, you can dig your case out of the "blizzard of I-485" saving yourself and the Service years of pending paperwork and frustrating processing delays.

Transferring Adjustment Applications to New Family or Employment Based Immigrant Visa Petitions
The AFM under section 23.2(l) provides several examples of when an applicant for adjustment under one category (preference or immediate relative) will prefer to have his or her application considered under another category. These examples include:

1. An alien who originally applied for adjustment based on an approved I-140 petition and married a U.S. citizen while the I-485 was pending, but who now prefers to adjust based on an I-130 filed by the new spouse;
2. An alien who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to be granted adjustment under an employment-based category in order to avoid having to deal with the conditional residency requirements of section 216 of the Act;
3. A Cuban national who applied for adjustment under section 202 of NACARA, but who now prefers to be granted adjustment under the Cuban Adjustment Act in order to receive the "rollback" provisions of the latter.

What this means is that an existing application for adjustment can be converted to another based on a different I-140 or I-130 for an immediate relative petition, which could include a new priority date or visa classification. Therefore, it is possible to reverse the principal/derivative classification and process and application sooner based on the spouse's priority date or classification. Exceptions are found in cases involving automatic revocation of employment-based petitions, fraud, or the denial of the original I-140 petition. If the exceptions do not apply to your case, then read on.

Guidelines: How to Transfer an Adjustment Application
There is no specific form for requesting a transfer of adjustment, but it must be done in writing. You do not need to pay a new fee or file a new I-485 application. If USCIS erroneously advises you that a new fee is required, you may obtain a fee refund. To make your request, you should provide clear information to the Service Center so it can make a determination that an earlier priority date or different visa classification can be applied to your pending adjustment (I-485) application. You must be able to demonstrate that you continuously maintained eligibility for the application originally filed. This is important in the section 245(c) and 245(k) interplay.

Continue reading "Adjustment (I-485) Backlog: Tips to Dig Out of the "Blizzard of I-485"" »

In response to a FOIA request submitted by a fellow AILA member, USCIS released 486 pages of materials used to train USCIS officers in the adjudication of EB-5 immigrant investor cases. These materials include voluminous information on how adjudicators work a typical EB-5 case. This information is extremely important in understanding the EB-5 adjudicator's approach in dealing with an EB-5 case. The attorneys at The Law Firm of Shihab & Associates have obtained a copy of these materials and utilize it when advising a potential EB-5 investor.

If you have filed for a green card (I-485) and submitted a request for work authorization (I-765) and advanced parole travel document (I-131), and you must travel before your I-131 can be adjudicated in the normal processing time, you can request expedited processing of the I-131. This article addresses those expedited I-131 procedures:

You MUST Make a Request
Typically, anyone who files Form I-485 in the U.S. also files Forms I-765 and I-131 concurrently with the Form I-485. If you have found that you must travel before your Advanced Parole Travel Document Form I-131 can be adjudicated within normal processing times, you can call the USCIS National Customer Service Center (NCSC) or make an info pass appointment at your local field office. Here in Columbus, Ohio, infopass appointments are simple to make and are usually scheduled within 3-5 days.

Making the Expedited Advanced Parole Request with the USCIS Field Office
Once you make an infopass appointment at the local field office, that office will determine whether you have has your fingerprints taken at an Application Support Center (ASC). If you haven't yet had your biometrics, the field office will schedule a walk-in appointment. The field office will then notify the office where the I-131 Travel Document/Request for Advanced Parole is pending, either the service center or the National Benefits Center ("NBC"), and request expedited handling. If the Field Office Director grants the request, he or she will inform the center that he or she has authorized expedited handling of the application and that the requisite biometrics have been captured.

Making the Expedited Advanced Parole Request Contact USCIS at 1-800-375-5283
If you contact the NCSC, the customer support representative will make a "service request" and forward the expedite request to the center having jurisdiction over the application. If the center determines that adjudication of the application should be expedited, it will determine whether you have already been to the ASC for biometric collection and, if not, schedule a walk-in appointment. You can contact both the NCSC and schedule an infopass appointment to make a request.

Continue reading "Expedited Advanced Parole Travel Document Requests (Form I-131)" »

Gus M. Shihab, Esq. founder of The Law Firm of Shihab & Associates, Co., LPA, has been named Top Lawyer in Columbus CEO Magazine. This is the third edition of Top Lawyers in CEO Magazine. Martindale-Hubbell provided a list of local attorneys who have attained "AV" ratings--the highest available. The rating is given only to attorneys who have at least 10 years in practice, and who fulfill a variety of other criteria.

Almost 1,250 lawyers in Franklin and contiguous counties are AV Peer Review Rated. The entire list, as provided by Martindale-Hubbell, appears in the April issue of CEO Magazine. For more information about Martindale-Hubbell, Martindale-Hubbell's Peer Review Ratings or the listed attorneys, visit www.lawyers.com.

As the Democrats and Republicans of congress continue to negotiate a compromise to the federal budget that is set to expire Friday, April 6th, 2011 at midnight, immigration attorneys in Columbus, Ohio have turned their attention to how a government shutdown will affect the normal adjudication of visas. Visa applications, including employment based I-140 and H-1B petitions as well as family based petitions including I-130 and I-485 applications, filed in the United States are usually adjudicated at one of the USCIS service centers throughout the country. These service centers are staffed by immigration officers who adjudicate visa applications. These immigration officers are employees of the federal government and could be furloughed if the federal government shuts down for lack of congressional funding.

Historically, government shutdowns have resulted in delays for visa adjudication. The reason for the potential delay is based upon the wording of the federal Antideficiency Act. This law states that in the event of a governmental shutdown the only governmental employees that will be permitted to continue to carry out their work will be employees who prevent or respond to "emergencies involving the safety of human life or the protection of property." The law goes on to state that "ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property" are not to continue their operations during a shutdown. Officers who adjudicate visas at the service centers will most likely not be deemed essential to the protection of safety or property and will be furloughed. With no-one to adjudicate visas, visa applications will be backlogged to some extent. However, other aspects of United States immigration policy will continue to be enforced. Customs and border patrol officials, for example, should remain active.

While the chance of a government shutdown is small, it remains a definite possibility. Also, delays in US postal service operations could occur. Therefore, foreign nationals and attorneys should be cognizant of the potential for delays in the adjudication and delivery of visa petitions and applications to the USCIS service centers.

Continue reading "Government Shutdown Could Effect Visa Adjudications" »

This is the second part of a two-part B-1 "Business Visa" article. Please find Part 1 here. To reiterate Part 1, the B-1 visa allows a visitor to temporarily come to the U.S. to conduct business on behalf of an overseas employer. Again, this article calls a B-1 visa the "business visa." This article provides more substantive guidance in obtaining the B-1 "Business Visa."

Bona Fide Nonimmigrant Intent
To obtain the B-1 business visa, you must have bona fide nonimmigrant intent. Nonimmigrant is simply the legal term for the word "temporary." Bona fide nonimmigrant intent is shown through providing the consulate officer with the following:

1. Evidence that you maintain a foreign residence
2. Intent to leave the US
3. Permission to enter a foreign country at end of trip
4. Adequate financial arrangements to travel to, sojourn in, and depart from the US

Generally, consulates scrutinize B-1 cases differently depending on whether you have a large, recognizable employer, or a small, perhaps self-owned business. I will discuss the different approaches for presenting evidence vis-a-vis whether you are conducting business on behalf of a large or small business.

Large Well-Known Employers
The B-1 business visa can be obtained by showing the consulate officer a letter from the large well known company stating the reason for the business trip, setting forth a legitimate business activity. The letter must also include the specifics of the trip, including the required period of stay in the U.S., confirmation of travel arrangements and accommodations, an itinerary, and other documentation appropriate to the business activity being conducted. Finally, the letter must include an affirmation that the business employee's travel expenses and means of support during the trip will be covered by the employer.

For example, if a business trip is meant to finalize negotiations on a sales contract in the U.S., include letters from the other party establishing the meeting dates for the negotiations and submit your hotel accommodations itinerary and plane ticket information. If this is done, the consulate officer will certainly find bona-fide nonimmigrant intent.

Small Businesses or Self-Employed Business Owners
Smaller companies must make a more detailed showing of the above-mentioned "bona fide nonimmigrant" intent factors. Financial arrangements must be adequate to defray expenses. This is shown by providing the officer with a round trip ticket or hotel accommodations. You must also have specific and realistic plans. This is shown by submitting travel plans and hotel accommodations, a detailed itinerary to demonstrate purpose of trip. If you are coming to the United States for training, you must submit the training schedule. The time period must be consistent with the stated purpose of the trip. In other words, if you are telling the consulate officer you are coming here for a two-week contract negotiation, you should not seek six months of B-1 visa time in the U.S. You must match the period with stated purpose. Finally, you must show permanent employment or business connections with the home country to ensure his return home.

Continue reading "How to Visit the U.S. with a Visitor (B-1) Visa to Conduct Business on Behalf of Overseas Employer (Part 2) " »