Immigration Visa Lawyer Blog

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

Many spouses and children of U.S. citizens qualify for legal immigration status, but are required to file the application overseas at their country of origin because they are unlawfully present in the U.S., also called "entering without inspection." If they were unlawfully present in the U.S. for more than 180 days, and then they go overseas, there is a law that bars them from reentering the U.S. for 3 years. This bar increases to 10 years if the illegal stay is longer than one year. This creates a catch-22 because if they leave the U.S. to apply for legal immigration status, they will be unable to reenter for 3 to 10 years. So, rather than go overseas to apply for legal status, many simply remain unlawfully in the U.S. to avoid being separated from their family for several years.

Many people who would be subject to the 3 or 10 year bar may be eligible for certain hardship waivers to allow them to return to the US after they apply for legal status overseas despite the 3 and 10 year bar. But critics say this process is lengthy and flawed. They are required to remain overseas until the waiver is granted before they can reenter the U.S., which is a process that can take from months to years, and there is no guarantee that the waiver will be granted. Therefore, many do not risk going overseas to apply for the waiver.

Even if a person has a legitimate relationship with a U.S. citizen, and is eligible to apply for legal immigration status, the current immigration law discourages that person from doing so. Instead, the current law actually encourages that person to remain in the United States illegally, or risk long term separation from the family.

Under the proposed rule change, announced today, foreign nationals in this situation could apply for the waiver while still in the United States. Then once the waiver is granted, they could depart and file for legal immigration status overseas at their country of origin, and then reenter the U.S. using the waiver.

This would eliminate the often prolonged wait faced by foreign nationals who are forced to wait overseas, and would encourage applicants to get legal status rather than remain unlawfully. "The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship," USCIS Director Alejandro Mayorkas said. This streamlined process would eliminate much of the economic and other hardships that result from long separation from the family.

Miriam Mendiola-Martinez, a foreign national of Mexico, filed a lawsuit in Arizona last week against Maricopa County Sheriff, Joseph M. Arpaio alleging that she was mistreated while she was pregnant as an inmate in the Sheriff's jail. She was six months pregnant when she was arrested in 2009 on charges of identity theft. The suit states that her Eighth and Fourteenth Amendment rights were violated by the MCSO's infliction of cruel and unusual punishment, deliberate indifference to her serious medical needs, and disparate treatment. The lawsuit alleges that MCSO and Maricopa Medical Center's unconstitutional policies, practices, acts and omissions, Ms. Mendiola-Martinez suffered immediate and irreparable injury, including physical, psychological and emotional injury and risk of death.

According to the lawsuit, Ms. Mendiola-Martinez was undernourished at the jail due to what jail staff called a "special" pregnancy diet. These pregnancy meals consisted of items such as two slices of bread, two slices of cheese or ham, undistinguishable cooked vegetables, and an occasional piece of fruit. She was also given two small cartons of milk per day. This hardly seems to be enough food for a pregnant woman eating for two.

She was taken to the Maricopa Medical Center by MCSO officers when she began to go into labor. Ms. Mendiola-Martinez gave birth to her son via Cesarean section, and she was not allowed to nurse or even hold her son after he was delivered. Officers put shackles on her feet before and after the surgery, and she was shacked to the hospital bed. Wearing only a hospital gown, Ms. Mendiola-Martinez was forced to walk through the hospital, with her hands and feet shackled. She began to bleed and could do nothing about it. She was not provided with a breast pump to safely and hygienically remove the breast milk she produced while she was separated from her infant son.

When she was discharged from the hospital, Ms. Mendiola-Martinez was not given a wheelchair to assist her, even though she was in great pain and could hardly walk. A deputy took her so quickly from the hospital that she did not receive her pain medication and discharge paperwork. A deputy then chained Ms. Mendiola-Martinez again and forced her to walk back to the nurse's station. Then, while shackled at her hands and ankles, with a bleeding surgery wound, Ms. Mendiola-Martinez was returned to the Estrella Jail.

About September 2008, the Maricopa County jails lost their accreditation from the National Commission on Correctional Health Care. On October 22, 2008, the Honorable Neil V. Wake found that the food given to inmates in the Maricopa County Jails constituted "current and ongoing violation of pretrial detainees' federal right to adequate nutrition."

On December 15, 2011, the United States Department of Justice issued the findings of the investigation it began in June 2008 in a letter addressed to Maricopa County Attorney William Montgomery. In that, letter, the Justice Department stated: "MCSO operates its jails in a manner that discriminates against its limited English proficient ("LEP") Latino inmates. Specifically, we find that MCSO, through the actions of its deputies, detention officers, supervisory staff, and command staff, routinely punishes Latino LEP inmates for failing to understand commands given in English and denies them critical services provided to the other inmates, all in violation of Title VI and its implementing regulations." The Department of Justice also noted: "MCSO fosters and perpetuates discriminatory police and jail practices by failing to operate in accordance with basic policing and correctional practices and by failing to develop and implement policing and correctional safeguards against discrimination in such areas as training, supervision, and accountability systems."

A new film, "Like Crazy," is making the rounds of film festivals, winning a top award at Sundance this year. It tells the story of two college students in Los Angeles who meet and fall in love. Jacob is an American, and Anna is a British exchange student. Anna overstays her student visa and then returns home to London. When she tries to fly back to Los Angeles, she finds herself barred by officials at the airport. This sets up the main action of the film, in which the two must find a way to continue their relationship despite the trans-North America, trans-Atlantic distance between them.

While the film primarily acts as a love story, it offers a glimpse of the issues faced by spouses, fiancees, and lovers who find themselves separated by immigration laws. An immigration lawyer certainly knows that these situations present complicated and emotional issues. Anna certainly made a mistake by overstaying her student visa. If she came to the United State on a J-1 student visa, for example, she may have been subject to a requirement that she return to her home country for at least two years, even if she did not overstay her visa period. J-1 visas typically allow a visitor to stay in the U.S. up to 30 days after their educational program ends, but they must then depart. Overstaying a student visa could lead to ineligibility to return to the U.S. for years.

Is there anything the young lovers in the film could do? Overstaying the visa made it difficult, if not impossible. If the two were to get engaged, and she did not overstay her student visa, they might be able to get a fiancee visa, known as a K-1. An American usually petitions for a K-1 while the fiancee is still abroad. Both fiancees must show they are legally eligible to get married in the petitioner's state of residence. They must show evidence that they will not become public charges, and that the engagement is legitimate. One specific requirement is proof that the fiancees have met in person at least once in the previous two years, which is intended to deter sham marriages. They must get married within 90 days of the immigrant's arrival in the U.S.

Continue reading "New Film Addresses the Issue of Student Visas, Immigration, and Young Love" »

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"" »

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)" »

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 article is the second installment following up and providing a conclusion to the first segment which provides the final techniques utilized by the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) responses. Again this article focuses on the RFE response, but its techniques are applicable to any written brief or statement made in response to USCIS.

Critique the Request for Evidence Itself
A major component of drafting the response to an RFE is the need to critique the request itself. The immigration officer may not have developed the facts in a complete and accurate manner. It is your job to comprehensively develop those facts (often by use of affidavits). By showing inconsistencies and other problems with the facts, as developed by the immigration officer, you begin to establish credibility to your case. The Immigration Lawyers at The Law Firm of Shihab & Associates are very experienced at analyzing the facts and respectfully presenting them correctly to the USCIS in an RFE response.

Secondly, you must scrutinize the quality and quantity of the legal research conducted by the immigration officer. Determine if the officer identified all the relevant legal authority. Often times, RFE's will present "biolerplate" legal authority. Did the immigration officer properly interpret the law? Did the officer correctly apply the law to the issue and the facts in the case at hand? Did the officer include legal authorities in the RFE, but not use them in the analysis or argument? Don't leave these questions unanswered. If there are flaws in the legal research conducted by the immigration officer, or flaws in the ways by which the officer cited legal authorities, point it out.

Finally, test the immigration officer's arguments. Has the officer adequately connected the issues with the facts and law? Have convincing analogies been developed by the officer? Has the officer adequately answered the questions asked? If there are flaws in the officer's arguments, point them out.

Revise, Revise, Revise....then Revise One More Time!
As Justice Louis Brandeis stated: "There is no such thing as good writing. There is only good rewriting." Justice Brandeis often revised his writing 15 or more times before he was satisfied. While this is obviously extreme, it is suggested that you revise your writing at least three times, more if time and money permit. Excessive use of passive voice, timid phrasing, vague words and other examples of poor writing are often found in first drafts. The lawyers at The Law Firm of Shihab & Associates spend the time to make sure your case is prepared with great diligence to grammer, form, substance and style.

As this article demonstrates, regardless of the inherent strengths or weaknesses of a given case, there is much that can be achieved by mastering the art of preparing a successful RFE response, Motion to Reopen/Reconsider brief or appeal. Our lawyers know this more than anyone!

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 2)" »

USCIS provides minimal guidance regarding the preparation of a Motion to Reopen/Reconsider or Request for Evidence (RFE) response. Unlike other USCIS procedures, CIS does not require the completion of a form when filing an RFE response. This little guidance provides a wide range of possibile methods to responding to the RFE. This article presents techniques that the Columbus Immigration Lawyers at The Law Firm of Shihab & Associates have implemented for preparing a successful responses to USCIS and focuses on the brief in support of an RFE response.

Prepare a Roadmap: Presentation Matters
While this might sound obvious, the most important element of the RFE response is drafting the response itself. Don't spend all your time meeting with the client, gathering facts and conducting legal research. Too often, not enough time is spent on planning and presentation. Remember, an RFE has a strict deadline that often poses a tight timetable to prepare the supporting documentation and legal arguments. As the saying goes, "plan the work; work the plan." This is an axiom the lawyers at The Law Firm of Shihab & Associates live by. You must leave sufficient time to prepare a polished product. Preparing a polished written RFE response does not simply happen. It requires good planning, organization and writing.

Focus on the Facts: Don't Drive from Boston to Chicago via Nashville!
Regardless of what factual informaiton you decide to present, you must determine the order in which to present the facts. Consider the following illustration: If you decide to drive from Boston to Chicago, it is unlikely you would drive first to Baltimore, then to Nashville and finally to Chicago, unless of course time and money were of no concern. Likewise, the immigration officer will expect to see some logical order to the presentation of the facts in your RFE response letter. Don't confuse the Immigration officer by driving from Boston to Chicago via Nashville!

There are various approaches for ordering the presentation of the facts: chronological, biographical (e.g., describing key individuals along with facts associated with them), or transactional. Employ whatever approach you use consistantly throughout the RFE response. Your facts should be presented persuasively without being argumentative. Facts, not opinions, will convince the USCIS officer to look favorably upon your client's case.

Continue reading "Drafting a Motion to Reopen/Reconsider or Request for Evidence Response to USCIS: Proven Techniques for Success (Part 1)" »

USCIS has implemented a new fee schedule. To access the new fee schedule, The Law Firm of Shihab & Associates directs you to visit the USCIS website here.

After passing through the House of Represenatives, the Senate has failed to deliver on passing the bipartisan DREAM Act. The DREAM Act stands for the Development, Relief and Education of Alien Minors and was drafted to provide a conditional pathway to legal permanent residence for certain unauthorized youth who, as children, were brought to the U.S. illegally if they can provide that they completed high school, have good moral character and complete at least two years of higher education or serve for at least two years in the U.S. military.

It appeared to all parties who have monitored this bill that the inability to pass the DREAM Act into law was chiefly due to politics. This bill can be seen as a litmus test for greater reform which worries and frustrates immigration practitioners. There is still hope for furtuer legislation however as interested parties such as the American Immigration Lawyers Association (AILA) and others will continue its efforts to lobby for the law's passage because they see the Senate's failure as nothing more than politics

The bill provides a path for those illegal children who came to the U.S. involuntarily and are here illegally through no fault of their own. The children who would have benefited under the DREAM Act would help the American economy by being educated in institutions of secondary education and/or by serving the U.S. armed forces. By not passing the bill, the U.S. Senate is basically saying that it does not want to deal with immigration issues, even logical ones, which should seem to spell doom for any Comprehensive Immigration Reform in the near future.

The Department of Justice announced that it has awarded $720,321 in grants to 13 organizations throughout the country to conduct public education programs for workers and employers about federal protections against immigration-related job discrimination. The grants range from $43,664 to $88,000, and are awarded by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Recipients will assist discrimination victims; conduct seminars for workers, employers and immigration service providers; and place advertisements in local communities through mainstream and ethnic media to educate workers and employers about their rights.

If you are in removal or deportation proceedings and you have a family based petition (Form I-130) petition pending or it has been approved, you could go home is as little as 30 days! This article addresses the new handling proceedures for individuals in removal or deportation (issued an NTA) with a pending or approved application or petition with USCIS.

Petition for Alien Relative (I-130) Expedites Removal:
A recent policy memo instructs the U.S. Immigration and Customs Enforcement (ICE) on handling removal deportation proceedings of aliens with pending or approved I-130 applications or petitions. The new ICE policy outlines a framework for ICE to request expedited adjudication of an application or petition for alien relative in removal proceedings. The petition must be pending before U.S. Citizenship & Immigration Services (USCIS). The case will be expedited if the approval of such an application or petition would provide an immediate basis for relief for the alien.

1. Detained Alien: if the case involves a detained alien whose application or petition is pending with USCIS, the office of chief counsel (OCC) is directed to request that USCIS expedite the adjudication of the application or petition within 30 days. ICE will see that USCIS conducts the interview, if needed.
2. Non-Detained Alien: if the case involves a non-detained alien whose application or petition is pending with USCIS, OCC will request that USCIS expedite the adjudication of the application or petition within 45 days.

Detained Aliens: Terminate Proceedings. Dismiss the Case. Get of Jail!
Certain cases in removal proceedings can be dismissed without prejudice. Where there is an underlying application or petition filed with USCIS by or on behalf of a detained alien and ICE determines as a matter of law and in the exercise of discretion that such alien appears eligible for relief from removal, the office of chief counsel is allowed to move to terminate the proceedings and the judge will dismiss the case. Dismissal is only done after the OCC contacts the local USCIS Field Office Director where the case is pending and Special Agent in Charge to determine if there are any investigations or serious, adverse factors weighing against dismissal of proceedings. Adverse factors include criminal convictions, evidence of fraud or other criminal misconduct, and national security and public safety concerns. This affects thousands of aliens married or related to a U.S. citizen or a lawful permanent resident who has filed a petition for them and who do not have a criminal conviction.

This is the first move by the Obama administration to establish a more lenient immigration policy towards aliens facing removal from the United States. Once it is determined that there are no adverse factors, Chief Counsel is likely to dismiss the case without prejudice before the Immigration Court. "Without prejudice" simply means that if the underlying petition or application is subsequently denied, the alien will be allowed to his or her case heard again in Immigration Court. This is advantageous because it allows the alien's case to be heard by USCIS and again by the Immigration Judge if something goes wrong at USCIS. This allows the alien to remain in the United States to take more bites out of the apple.

After OCC notifies the Field Office Director that there are no adverse factors, the Director must release the alien pursuant to the dismissal of the proceedings. This allows ICE to focus on those aliens who are criminals while expediting the cases of law-abiding immigrants. The new approach saves tax dollars and efficiently allocates ICE's resources. It also promotes unity of the family unit - a tenant of the Immigration laws.

Non-Detained Cases:
Where there is an underlying application or petition and ICE determines in the exercise of discretion that a non-detained individual appears eligible for relief from removal, Chief Counsel should promptly move to dismiss proceedings without prejudice before the Immigration Court.

So detained and non-detained aliens' cases can be dismissed and terminated from Immigration Court. This does not apply to all cases. Suffice it to say that if you are in deportation because of an overstay problem or techincal violation of immigration laws, your case can be expedited out of removal proceedings. There are four (4) criteria that ICE uses to determine which cases are "dismissible."

Continue reading "Ohio Immigration Lawyer: Get Out of Removal (Deportation) Proceedings for Free? Not Exactly - Noncriminals Can Get Out in 30 Days!! " »

If you are the beneficiary of a family-based green card based on a petition filed by your U.S. citizen family member, you can be required to attend a green card interview. If you miss the green card interview, your case will be denied. However, if you need to reschedule your green card interview or if you have missed your green card interview, USCIS allows a solution to correct the problem. This articles addresses USCIS's guidance.

Request to Reschedule Interview: Biometrics
First, there are two types of appointments you will be required to undergo in a green card case through family. You will need to have a biometrics appointment then a green card interview. The biometrics interview will be set before the green card interview. If you need to change the date of the biometrics, simply follow the instructions on the notice (Form I-797). The instructions basically tell you to mail the original notice back to the local USCIS field office asking to change the date of the biometrics. Once you do that, you will receive a notice with a new date. Be sure to attend this biometrics as USCIS must have your fingerprints on file to issue your green card.

If you have missed the biometrics appointment through excusable neglect, you can be given a chance to reschedule. Disclaimer: this guidance is merely instructional. Do not miss your biometrics appointment without notifying USCIS in advance. USCIS local offices differ on how they treat a missed biometrics appointment. This advice is a last option for those who have missed their biometrics appointments due to exigent circumstances. If you have missed your biometrics appointment, schedule an info-pass appointment with the local USCIS office and explain the reasons you missed. Generally, they will let you go that same day and get your fingerprints taken. However, it is a risk and I do not recommend relying on any favors from USCIS. Once you have USCIS has taken your fingerprints, you will be required to attend your green card interview.

The Green Card Interview
The green card interview is a chance for USCIS to sit down with you and your U.S. citizen (or LPR) family member to discuss the relationship. If your green card is based on marriage to a U.S. citizen, USCIS will ask you questions regarding the bona-fides of the marriage. If you are a brother, sister, son or daughter, mother or father of a U.S. citizen, USCIS will ask questions regarding your family relationship and ensure that you are actually related in the manner indicated on the Form I-485. This is the last chance for USCIS to verify the bona fides of the relationship. If you do not show up to your interview, USCIS is required to deny the petition for abandonment. Hence, your attendance is absolutely mandatory. Therefore, the question arises: what do you do if you cannot attend the interview? USCIS offers the following guidance.

Request to Reschedule Interview: Green Card Interview
Prior to the date of the green card interview, you may either withdraw the petition or request to reschedule the interview based on good cause. USCIS's guidance to its adjudicators indicates that in order to reschedule the interview, the adjudicator must be convinced that the applicant is unable to attend the scheduled date because of circumstances beyond his or her control. If the adjudicator finds good cause for the applicant's inability to appear, the adjudicator will reschedule the green card interview and mail a new Form I-797C, Request for Applicant to Appear for Initial Interview. If, however, the adjudicator determines that no good cause exists, the adjudicator is instructed to deny the case for abondonment.

Continue reading "Columbus Immigration Lawyer: Guidance on Rescheduling a Green Card Interview " »

This question has been raised by a few of our clients. If you have not turned in your I-94 upon departure, the US will have no record of your departure. This means, according to the US, you are still in the country because your departure was not recorded properly. This article offers assistance to correct this problem.

Ooops, I did not return my I-94 upon Departure
If you leave the country and the CBP (Customs and Border Patrol) officer forgets to collect your I-94, you will be ok if you left by airplane or a cruise ship. Your departure will be automatically verified. So, you do not need to contact the U.S. officials regarding your exit. To be safe, hold on to your outbound boarding pass. This will help CBP officials next time you enter the U.S. andit will expedite the re-entry process so you do not have to explain the error.

However, if you left the U.S. by crossing the boarder on foot or a private plane, you need to take the following actions so that the U.S. government can properly track your exit. The reason for this is that if you don't validate your exit from the U.S., or if you cannot reasonably prove you departed within the time frame given to you when you entered, the next time you apply for admission to the United States, the CBP officer presumes you stayed in the country past your authorized period of stay indicated on the I-94 arrival record. This can cause CBP to summarily dismiss you from the country. Or if you applied for a visa at a U.S. consulate abroad, it may cause CBP to cancel the visa at the border causing you to have to return home and do the process all over again! If you leave on foot or by private plane and did not turn in your I-94, then the following guidelines will govern what steps you need to take.

Entered under the Visa Waiver Program (VWP)
You must register your exit if you entered pursuant to the VWP. This is because if your I-94 was not taken by a CBP officer when you left, and you entered under the VWP you cannot re-enter the U.S. unless you obtain a visa at a consulate abroad. This is because under the Visa Waiver Program, foreign nationals who remain beyond their authorized stay in the U.S. cannot reenter the U.S. in the future without obtaining a visa from a U.S. Consulate. This is applicable to those foreign nationals who leave the U.S. by land through Canada or Mexico to catch an onward flight home. If you do not register your exit within a reasonable time and you try to re-enter the U.S., the CBP officer will very likely order your immediate return home. Do not worry if you are a VWP visitor and you left the U.S. by a commercial aircraft or cruise ship.

Registering your Exit
To register your exit, first send your I-94 departure record together with any evidence that proves you left the United States to:

DHS - CBP SBU 1084 South Laurel Road London, KY 40744

You do not want to mail your I-94 to any U.S. consulate abroad or to the CBP. Simply mail it to the above address and your information will be updated. Mail the I-94 with as much of the information of your exit as possible. CBP will consider any of the following:

• If you flew home from Canada or Mexico, send the boarding passes from those countries
• Send copies of all the pages of your passport including the departure stamp indicating your entry to another country
• Pay stubs from your employer to show you worked in another country after you left.
• Bank statements showing transactions in another country after you left the United States.
• Any school records showing you attended school in another country after you left the United States, and
• Other such evidence showing that you were living abroad after you left the United States.

Continue reading "Columbus Immigration Lawyer: What happens if I left the U.S. and did not return my I-94 (Departure Record) to CBP?" »