September 2015 - Brian Kenneth Johnson Law Practice

30

September 2015

The Navy has begun accepting MAVNI recruits once again. Navy MAVNI recruits generally work with the Navy SEALs in Coronado, California. The Navy MAVNIs assist the SEALs by providing language and cultural expertise, but don’t necessarily have to be SEALs themselves. If you have clients interested in military service, MAVNI is now available for potential Army, Navy, and Air Force enlistees.

Navy stopped doing MAVNI when President Obama’s new Assistant Secretary of the Navy, Juan M. Garcia, decided not to let the Navy participate anymore back in 2010. Mr. Garcia has now left to work for Amazon.com.

28

September 2015

We understand that individuals seeking to file adjustment of status applications must use the

“Final Action Dates” chart for determining when they can file, unless USCIS determines that

there are enough immigrant visas available to support the filing of additional adjustment

applications, in which case the “Dates for Filing” chart may be used. According to the October

Visa Bulletin, “USCIS has determined that [the “Dates for Filing” chart] may be used … this

month for filing applications for adjustment of status with USCIS” for both the family- and

employment-based preference categories.

1. Please confirm that USCIS will permit the filing of adjustment of status applications in

accordance with the “Dates for Filing” chart throughout the entire month of October in

accordance with the Visa Bulletin, and that USCIS will not cease accepting such applications

at any time prior to November 1, 2015.

2. Please also confirm that if USCIS agrees to accept adjustment of status applications in

accordance with the “Dates for Filing” chart in any given Visa Bulletin month moving

forward, that it will continue to accept such applications throughout the entire month, and

will not cease to accept adjustment applications at any point prior to the start of the following

month.

3. The Department of State Visa Office has advised that the “Dates for Filing” will generally

remain the same or may move forward slightly throughout the fiscal year. We understand

that USCIS will decide whether to continue using those dates for accepting I-485

applications. Does USCIS anticipate continuing to accept adjustment applications throughout

the fiscal year in accord with the “Dates for Filing” chart? If not, how far in advance will

USCIS provide notice that it will only accept applications based on the “Final Action Date”

charts?

4. For purposes of the Child Status Protection Act (CSPA), please confirm that the “Final

Action Date,” when an immigrant visa number is actually available, is the relevant date from

which an applicant must have “sought to acquire” permanent resident status within one year.

Please also confirm that the filing of an application under the “Dates for Filing” chart will

serve to freeze the applicant’s age and confer CSPA benefits.

5. Please confirm that the date of filing the adjustment of status application, regardless of

whether an immigrant visa is immediately available, will start the 180-day clock for purposes

of permanent portability under AC21.

6. Please confirm that adjustment of status applications may be filed concurrently with an I-140

Petition for Alien Worker in accordance with the “Dates for Filing” chart, and that an

approved I-140 immigrant petition is not a pre-condition for filing.

7. Please confirm that, pursuant to AC21, the relevant date for determining whether an

individual may obtain a 3 year extension of his/her H-1B status is the “Final Action Date.”

8. Please confirm that consistent with current filing procedures and policies outlined in the

USCIS Online Policy Manual, medical examination forms are not required to be filed

with applications for adjustment of status that are filed in accordance with the “Dates for

Filing” chart. With what will likely be a significant increase in filings, please describe the

the

tracking mechanisms that USCIS has implemented to ensure the timely issuance of RFEs

notifying applicants that they must file a medical examination form.

9. In view of the likelihood of a surge in adjustment filings in October, please provide an

overview of the additional training being undertaken at USCIS Lockbox facilities to guard

against erroneous rejections. In addition, please describe the best practices for filing

adjustment of status applications under the “Dates for Filing” chart that might help reduce the

likelihood of an erroneous rejection.

10. Please confirm that two-year EAD/Advance Parole documents will be issued in those cases

in which it is likely that the application will be pending for more than one year.

11. Please describe the processes by which USCIS will track cases that have been filed in

accordance with the “Dates for Filing” chart, and pull them for final adjudication and green

card production when the “Final Action Date” becomes current.

12. If an individual files an I-485 adjustment of status application in accordance with the “Dates

for Filing” chart, please confirm that the individual may transfer the adjustment of status

application from one eligibility basis to another, in accordance with AFM 23.2(l), even if the

priority date is not current for “final action.”

13. New Question: Please advise our members and the public what information came to light

after the initial publishing of the October Visa Bulletin that led USCIS to believe there would

not be enough immigrant visa numbers available to warrant accepting applications for those

with priority dates listed on the September 9th version of the Visa Bulletin. Our members

have noted they now have very few clients eligible to file.

28

September 2015

Remember when this happened before? And then we receive the “Update on July Visa Availability” that contained the following,

The sudden backlog reduction efforts by Citizenship and Immigration Services Offices during the past month have resulted in the use of almost 60,000 Employment numbers. As a result of this unexpected action it has been necessary to make immediate adjustments to several previously announced cut-off dates.

American Immigration Lawyer Association (AILA), representing more than 10,000 immigration attorneys, played a pivotal role in the process to force USCIS to resolve the visa bulletin issues. On July 5, it teamed up with American Immigration Law Foundation (AILF) and decided to bring a class-action lawsuit against the federal immigration agency. Although eventually AILF did not file the lawsuit because the issue was fixed at the end, no one can underestimate the effect of this planned legal action. AILA provided a channel for the government agencies to hear the feedbacks from immigration attorneys and applicants. It regularly holds liaison meetings with USCIS.

In middle July, most applicants had given up the hope to file their I-485 application in the near future. We were still closely monitoring the whole event and responses from all relevant perspectives. After a thorough analysis of the situations and immigration policy making processes, we predicted in the morning of July 16 that USCIS would accept I-485 petitions in July.

Then the August Bulletin showed all Employment-Based categories as unavailable but snuck in the following note,

JULY EMPLOYMENT-BASED VISA AVAILABILITY

After consulting with Citizenship and Immigration Services, the Visa Office advises readers that Visa Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for purposes of determining Employment visa number availability, and that Visa Bulletin #108 (dated July 2) is hereby withdrawn.

On July 17, 2007, the Department of State announced that the Visa Bulletin for July 2007 released on June 12 was valid. That means, visa numbers were available for all applicants in all employment-based immigration categories except “other workers.” The door for tens of thousands of immigrants to submit their I-485 petitions was opened again. The pressure from immigrants, employers, immigration attorneys, immigration professional organizations and legislators eventually forced the government to change its policy in favor of the immigrants. It was reported that about 300,000 applicants submitted their I-485 petitions in July and August 2007.

The Summer of 2007 Visa Bulletin Fiasco did get resolved. It took approximately 2 months for USCIS to allow filings that were previously not allowed because of an updated/revised visa bulletin. We at Guerra & Johnson, P.C. in Houston, Texas and San Diego, California are optimistic that litigation will not be needed to rectify this matter but we are in the process of fielding questions from clients concerned about the revised bulletin and their inability to apply. We are submitting this information to our AILA colleagues for potential litigation.

Upset about Visagate 2015? Tell the White House by signing this online petition.

25

September 2015

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Obama and Secretary of Homeland Security Johnson, as detailed in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st century, issued in July 2015.

What is Changing

Two charts per visa preference category will be posted in the DOS Visa Bulletin:

Application Final Action Dates (dates when visas may finally be issued); and
Dates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. Applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status.

To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

Documentarily qualified visa applicants reported by DOS;
Pending adjustment of status applications reported by USCIS; and
Historical drop off rate (for example, denials, withdrawals, abandonments).

About the Visa Bulletin

DOS publishes current immigrant visa availability information in a monthly Visa Bulletin. The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date.

The priority date is generally the date when the applicant’s relative or employer properly filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification is required to be filed with the applicant’s immigrant visa petition, then the priority date is when the labor certification application was accepted for processing by Department of Labor.
Availability of an immigrant visa means eligible applicants are able to take one of the final steps in the process of becoming U.S. permanent residents.

Learn more about adjustment of status and the Visa Bulletin on our website.

25

September 2015

This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes. Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections (sections 4.B. and 5.B.) which have been adjusted have been identified in Bold type.

Please be advised that DHS will rely on this revised bulletin, rather than the bulletin published on September 9, 2015, when considering whether an individual is eligible to file an application for adjustment of status.

USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. Applicants for adjustment of status may visit www.USCIS.gov/visabulletininfo for additional information.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10
Other Workers	01SEP15	01JAN07	01JUL05	01SEP15	01JAN10
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted Employment Areas/ Regional Centers and Pilot Programs	C	01MAY15	C	C	C

24

September 2015

Starting today, USCIS will suspend final adjudication of employment-based Form I-485 applications (Form I-485, Application to Register Permanent Residence or Adjust Status) because the Department of State reports that the statutory cap has been reached for the employment-based preference categories for fiscal year (FY) 2015.

This suspension applies to all employment-based adjustment applications pending with USCIS through September 30, 2015 (the remainder of FY2015).

USCIS will continue to accept adjustment of status applications that are filed when the foreign national’s priority date is earlier than the cut-off date published in the September Visa Bulletin for his or her preference category and country of birth/chargeability. USCIS will resume final adjudication of employment-based adjustment applications beginning October 1, 2015, when visa numbers are again available.

Applicants filing Form I-485 on or after October 1, 2015, should review the “When to File” section on the Visa Bulletin Info Web page to determine whether they are eligible to file Form I-485.

10

September 2015

Remember back to November 20, 2014 when you watched President Obama deliver his speech on reforming the immigration system from within the corridors of Washington, DC? Remember when you heard about Judge Hanen in Texas and learned that the reform was on hold? What do you make of this recent news? Have you looked at the most recent Visa Bulletin for October 2015?

07

September 2015

If you were unlawfully in the United States for certain periods of time and depart the country, you may not be able to return.

In case of an emergency, and before leaving the United States, you should know what documents will be required to reenter the United States as well as understand whether or not your departure will negatively impact your application(s) for immigration benefits.

As a general rule, any person who is not a U.S. citizen or non-citizen U.S. national is subject to immigration review each time the person seeks admission to the United States from any place outside the United States. Even if you have already been admitted as a permanent resident (you have a green card) you are subject to review by an immigration official. If, during such review, you are determined to be inadmissible (even though you may have been admissible previously), you may be denied admission.

If you are seeking admission or parole at a port of entry you generally must have in your possession a valid and unexpired travel document (e.g. a green card, U.S. visa, an advance parole document) to present to the officer at the port of entry.

Depending on your immigration status or if you have an application for an immigration benefit pending, different types of travel documents may be required if you (including permanent residents) wish to return to the United States lawfully after travel abroad. These documents should be applied for, in certain cases, prior to your departure from the United States.

Travel outside of the United States may have severe consequences if you are in the process of adjusting your status (applying for a green card). In general, if you are seeking immigrant status (a green card) and depart the United States without the appropriate documentation (i.e. advance parole) you may be inadmissible to the United States upon return, or even if admitted, you may be found to have abandoned your application.

If you have been admitted as a nonimmigrant and have applied to extend the period of authorized nonimmigrant stay, or have applied to change to a different nonimmigrant status, you will automatically abandon the application if you leave the United States before USCIS makes a decision on the advance parole application.

If you depart the United States after accruing certain periods of unlawful presence in the United States (time spent in the United States illegally) you may be barred from admission for either three years or ten years, depending on the amount of unlawful presence an individual has accrued. Any departure from the United States may trigger this ground of inadmissibility, even if you have obtained an advance parole document.

If you have accrued more than 180 days, but less than 1 year, of unlawful presence and who voluntarily depart the United States before the start of removal proceedings are inadmissible if you seek admission within 3 years of the date of their departure. If you have accrued 1 year or more of unlawful presence and you depart the United States, whether or not removal proceedings have started, you are inadmissible if you seek admission within 10 years of the date of departure.

05

September 2015

A U.S. visa gives you permission to travel to the United States, but does not guarantee your entrance or determine the length of time you will be allowed to stay. An immigration officer at the point of entry makes those decisions.

When you arrive, an immigration officer will review your passport, visa, and I-94 arrival and departure card to verify if and how long you can be admitted to the U.S. The immigration officer will capture your photo and your fingerprints just like during the visa interview process. If you are approved, you will be directed to the baggage and customs inspection areas to collect your luggage.

In some cases, an immigration officer may direct you to the secondary inspection area for further questions. During secondary inspection, a second immigration officer will review your case and ask you about your travel and background.

For detailed information on arriving and departing the U.S., please visit www.cbp.gov

05

September 2015

The TN Visa was created after the signing of the North American Free Trade Agreement (NAFTA) in 1994 to facilitate the temporary movement of qualified professionals from Canada, Mexico and the United States.

As of January 1, 2004, the procedures were simplified for Mexicans by removing the requirement for petitions and labor conditions applications. Mexican citizens should apply for TN visa at U.S. Embassy – Mexico City or at any U.S. Consulate.

The employer in the U.S. must provide to the applicant a Letter of Employment in the United States. The letter must indicate that the position in question in the U.S. requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.

Qualifications for a “TN” visa

A citizen of a NAFTA country may work in a professional occupation in the U.S. provided:

the profession is recognized under NAFTA; and
the alien possesses the specific criteria for that profession; and
the prospective position requires someone in that professional capacity; and
the alien is going to work for a U.S. employer.

NOTE: A “carta de pasante” is not a degree for NAFTA purposes. Neither is a Mexican “diploma” considered to be a degree. Rather, only a Mexican “titulo” is considered a degree for NAFTA purposes.

If all of these conditions are met, then a TN may be issued.

NOTE: Spouses and unmarried, minor children of principal aliens are entitled to a derivative status visa, but they are unable to accept employment in the United States. Aliens entering under this classification are considered non-immigrants and granted TD visa status.

Please click here for a list of professions recognized under NAFTA.

The Letter of Employment must include information and evidence regarding all of the following:

A. Requesting Employer

The letter must indicate that the position in question in the U.S. requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.
The applicant must present evidence of professional employment to satisfy the Consular Officer of your plans to be employed in prearranged business activities for a U.S. employer(s) or entity (ies) at a professional level. Part-time employment is permitted. Self-employment is not permitted. An employment letter or contract providing a detailed description of the business activities may be provided from the U.S. or foreign employer, and should state the following:
Activity in which the applicant shall be engaged and purpose of entry;
Anticipated length of stay;
Educational qualifications or appropriate credentials demonstrating professional status;
Evidence of compliance with DHS regulations, and/or state laws; and
Arrangements for pay.
Although not required, proof of licensure to practice a given profession in the U.S. may be offered along with a job offer letter, or other documentation in support of a TN visa application.

B. Applicant’s Credentials/Qualifications

Applicant’s Name (include first, middle, paternal last, maternal last names)
Date and place of birth
Nationality (copy of passport)
Copies of prior visas (all classifications)
Profession
Type of Degree and field of study (include copy of degrees, diplomas, certificates of completion; and accreditation of foreign academics and credentials by a recognized evaluation service)
Education and Experience Vitae/Membership in Professional Organizations, Licenses (describe fully-separate sheets may be required)

C. Proposed Employment

Job Title
Qualifying profession in which the applicant will be engaging (from the NAFTA Professional Job Series List)
Detailed description of proposed employment
Location of proposed employment
Full or Part-time (specify no. of hours per week)
Proposed wages per hour/week
Justification for employee with applicant’s profession and duration of proposed employment (explain justification)
Type of licensure required for proposed employment (note: compliance enforcement is the responsibility of local or state authority and lack of licensure is not a basis for visa refusal)

NOTE: The requesting employer should provide supporting documentation for the information included in the employment letter whenever practical. Incomplete information or lack of evidence may delay completion of the review or the refusal of the application. We may request other evidence as deemed necessary.

Below is the format of a sample petitioner’s job offer letter:

LETTERHEAD-logo
ADDRESS
CITY, STATE, ZIP
PHONE
FAX
EMAIL
Date

Addressed to:
U.S. Embassy
Non-Immigrant Visa Section

Mexico City, Mexico

Re: Petition for TN/TD Nonimmigrant Visa Application
Petitioner: Company Name and phone number of petitioner
Beneficiary:

Full name of applicant (i.e. two first names and two last names)
DOB of applicant
Phone number of applicant
Position: (Position Title, which must be on the NAFTA list of professions)

Dear Sir or Madam:

Introduction paragraph

I. Petitioner: Name of Petitioner
(Petitioner Profile is the general company background information)
II. Position: Position Title
(Position description includes duties, definition of degree and/ or experience required for the position)
III. Beneficiary: Name of Applicant
(Beneficiary Profile describes applicant’s qualifications, including education degrees and/ related work experience)
IV. Terms of Employment:
(Describes salary to be paid, length of contract – in months or years – and other terms of employment)

Conclusion paragraph (Summary of major points of the petition)

TD Visas

If you are a dependent of a TN visa holder applying later without the principal applicant, please bring the following for your interview:

Copy of TN visa from principal applicant
Copy of TN principal applicant’s employment letter
Passport and any prior U.S. visas
Marriage Certificate
Birth Certificate for children

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Monthly Archives: September 2015

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