March 11, 2010

Some Small Options for Citizens of Chile

Two very strong aftershocks hit Chile today, right around the time of the inauguration of Chile's new president, Sebastián Piñera, in Santiago. Immigration lawyers at Fong & Aquino in Los Angeles have received a continuous flow of inquiries about any possible immigration benefits that might be made available to Chilenos. While el Presidente Piñera may have promised una nueva forma de gobernar, it is mostly business as usual with US Citizenship and Immigration Services. Some small developments:

* USCIS says that Chilenos may submit applications for extension of stay (EOS) or change of visa status (COS), even in cases where the individual's authorized stay on the I-94 has expired. Please note that USCIS does not say that all these applications will be approved. If a Chileno has been out of status in the USA for a very long period of time, it is not clear that filing a EOS or COS would be effective to fix things.

* Individuals may seek to extend a parole that has already been granted. Also, individuals may apply for expedited advance parole to exit and re-enter the USA. Be careful, because an advance parole is not a guarantee of re-admission, and an advance parole does not cure the problem of the 3-10 Bar which applies to persons unlawfully present in the USA for more than 6 months. If you exit the USA, and if you have been unlawfully present in the USA for more than 6 months, you may have serious difficulty getting another visa or legal resident status in the future.

* Chilean F-1 students can apply for Employment Authorization Documents (EADs) which will allow them to accept employment in the USA, if they can demostrate that they are experiencing economic hardship due to the earthquakes in Chile.

* Certain family immigration petitions can be expedited.

Many Chilenos have had questions about Temporary Protected Status (TPS), and it does not seem as if Congress is going to create a TPS for Chilenos. It is still a possibility, but if they have not done so by now, I am doubtful. If you have questions about your options, contact our office, or the office of an experienced immigration attorney. --jcf

March 9, 2010

Greece Now Eligible for Visa Waiver Program

SmGreek Flag.jpegThe citizens of some countries are allowed to enter the USA as touristic or business visitors without first obtaining a B-1/B-2 visitor visa. As Los Angeles immigration lawyers, Fong & Aquino often receives questions about whether a particular country is eligible for this Visa Waiver Program (VWP).

Today, the US Department of Homeland Security announced that citizens of Greece are now eligible to enter the USA as visitors, using the VWP. Eligibility for the VWP is based on a country's compliance with security and data-sharing requirements--such as law enforcement and security-related data sharing with the United States; timely reporting of lost and stolen passports; and maintenance of strong law enforcement, counterterrorism, border, aviation, and document security protocols. In turn, citizens of Greece will be permitted to travel to the United States for up to 90 days as visitors without first obtaining a visa.

Any Greek citizen that wishes to enter the USA as a visitor using the VWP must first register him/her self under the US government's Electronic System for Travel Authorization (ESTA). This registration must take place prior to boarding any flight to the USA. Information about ESTA is available here. --jcf

March 8, 2010

Chile: Estado protegido temporal (TPS)

Flag Chile.jpeg

The powerful earthquake that hit Chile moved the entire city of Concepcíon, Chile 3 meters to the west! When such a natural calamity strikes a particular country, the immigration lawyers at Fong & Aquino in Los Angeles receive many calls and e-mails from citizens from that country about the possibility of staying in the USA, because of the problems back home.

The US government sometimes permits citizens from that country to remain in the USA -- even after their visas or landing permits have expired -- due to the emergency circumstances in the home country. This designation -- which is called Temporary Protected Status (TPS) -- is made by the US government. At the present time, Chile has not yet been designated a TPS-eligible country by the US government.

A veces, por situaciones de urgencia nacional, el gobierno estadounidense les permite a ciudadanos de algunos paises de quedar en los EE.UU. -- aunque sus visas o permisos sean vencidos. Esta designación se llama Estado Protegido Temporal (TPS, en inglés). En este momento, los ciudadanos de La República de Chile todavía no han sido nombrado como eligible por TPS por el gobierno estadounidense.

If you are from Chile and wish to contact the attorneys at Fong & Aquino to discuss your options, please call to make an appointment. --jcf

March 5, 2010

USCIS (Again) Criticized for Arbitrary Requirements

The US Court of Appeals for the Ninth Circuit (for the western part of the USA) handed down a decision on 4 March 2010 that strongly criticizes -- and rules against -- US Citizenship and Immigration Services (USCIS) for arbitrarily imposing novel substantive or evidential requirements over and above those required by immigration regulations. Fong & Aquino immigration lawyers in Los Angeles have recently seen an increase in USCIS Requests for Evidence (RFEs) which ask for (a) documents which have already been submitted, (b) information which does not relate to the case at hand, and (c) proof which is not required or is irrelevant.

This case is a vindication of the rule of law, that USCIS cannot simply make up the rules as it goes along, lawlessly flying by the seat of its administrative pants. This case says that USCIS must follow the law and provide a reasonable and fair process. This case, called Kazarian v. USCIS, can be read here.

Does this mean that USCIS will now and forever cease and desist from arbitrary and capricious rulings, making up requirements outside the regulations, and creating their own rules? Of course not. It does mean that, at least here in the western region, attorneys have an additional legal precedent to correct future wrong-doing. --jcf

March 3, 2010

Job Creation - Opportunities for Foreign Investors

When the Senate advanced the job-creation bill last week, employers were given the signal that hiring tax incentives are on the horizon. Perhaps in a nod to the Administration's No. 1 priority of creating jobs for unemployed Americans, the USCIS has just announced a forum on the EB-5 immigrant investor program. In the last year, and as recently as December 2009, the USCIS issued updated guidance on I-526 and I-829 filings so that USCIS adjudications could make decisions with clarity and consistency, allowing investors to make job creation through the EB-5 program a reality soon as possible. These are all indications that this is the time for foreign investors to again bring private enterprise to our great nation.

The upcoming USCIS EB-5 forum is only open to attorneys representing these so-called "million dollar investors." Fong & Aquino attorneys will be in attendance and ready to present concerns facing our clients as well as potential issues for those investors considering the EB-5 program.

It is true that the EB-5 investors greencard process is often called "hypertechnical," and has in the past been plagued by administrative delay and inconsistent treatment. But I believe that the view of recent USCIS' actions, the agency is acknowledging just how critical the EB-5 investors program is to our nation's economic recovery. For each EB-5 investment, 10 full-time jobs must be created, and that means 10 more working Americans. Call Fong & Aquino if you would like to discuss how you can start investing in America. ---ecf

February 27, 2010

Earthquake in Chile; Tsunami Threats Worldwide

Chile: an 8.8 magnitude earthquake hit Chile today. Lasting 90 seconds it was 500x more powerful than the one that shook Haiti. Tsunami warnings and alerts are now in place from South America to Asia and throughout the Pacific. Evacuations have already begun in Hawai'i. Fong & Aquino sends a message of hope and support to our Chilean clients who may have relatives or loved ones in the country.

Like Haitians present in the United States after the devastating earthquake in their home country, Chileans in the United States may soon be eligible for "Temporary Protected Status" or "TPS" if Congress designates Chile as a country where nationals cannot return safely because of dire conditions impacting the country. Haiti was designated a TPS country on January 21, 2010, only nine days after the January 12 earthquake.

Travel back to Chile may be impossible for quite some time, however those who have H-1B1 or other temporary visas, and who want to travel to the country in the weeks to come should review the Department of State website for all warnings on travel conditions.

Please contact Fong & Aquino if you are from Chile and your visa has expired or if you have other questions about possible TPS status. ---ecf

February 26, 2010

Adoptions of Orphans from Haiti

USCIS published guidance this week helping adoptive parents with pending adoptions of orphaned children from Haiti. To help families whose adoptions were not finalized before the earthquake, a separate category now allows for the parole of children into the United States even before the adoption is final.

For families who want to bring their children into the US before the adoption has been finalized, once here, adoptive parents will need to choose between adjusting their child's status as an orphan or as an adopted child. Few immigration attorneys have handled cases of orphaned children or adoptions made in the United States.

The attorneys at Fong & Aquino have extensive experience in helping families to immigrate both orphaned children and children already present in the United States. If you would like a free consultation about the the options you may have for your family, call us for a free consultation. As we have in the aftermath of the 2004 Indian Ocean tsunami, Fong & Aquino has encouraged clients to give to the relief efforts for Haiti in lieu of consultation fees. We thank those who have given to the Red Cross and to Doctors Without Borders. ---ecf

February 17, 2010

FY 2010 H-1B Season: Issues on the Horizon

The H-1B season begins on April 1, 2010. The attorneys at Fong & Aquino have been fielding phone calls and queries about filing new H-1B petitions. With relatively new changes in place for processing labor condition applications (LCA) this new process has caused such delay that even the USCIS ombudsman has called for some leniency in accepting cases with no certified LCA.

Based on last H-1B season, employer's tax returns, payroll records and other indicators of viability are now highly scrutinized. Applicants should also be prepared for the USCIS to review all of their previous immigration history, and of course their qualifications for the job. If you have questions about the H-1B process and how you can best prepare your application, contact Fong & Aquino. ---ecf

February 11, 2010

Immigration Reform Bill Introduced in Congress

As immigration attorneys with very strong roots in the immigrant communities of Los Angeles, the lawyers at Fong & Aquino stay current on legislative developments that could affect our clients and their families. On 15 December 2009, over ninety House Democrats unveiled a comprehensive immigration reform bill. The bill is called the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR-ASAP).

President Obama has said there should be comprehensive immigration reform. The bill includes an "earned" legalization program. The program as currently proposed would allow undocumented people in the USA as of 15 December 2009 to apply for legalization. There would be special, more lenient rules for young persons. Many people want to call this an "amnesty," but it is important to see all the details about the program before getting too excited.

There are other provisions for "visa recapture" to reduce waiting times and backlogs. This bill would also put a new employment-eligibility-verification system into place. There would be harsh penalties for hiring unauthorized workers.

These proposed changes are very exciting; however, we must remember that this bill is only a PROPOSAL. It will have many reincarnations before a final bill passes, if a bill passes at all. The President has said he wants CIR on his desk by the end of 2010, but there are obviously many other things occupying the attention of Congress at this time. Stay tuned. --jcf

February 8, 2010

The USA is Bigger...

flag_CNMI.gifAll immigration law attorneys must deal with foreign countries, unique international legal issues, and some quaint interpretations of law. The lawyers at Los Angeles' Fong & Aquino are no exception, and in fact, this recent change affects some of our clients who do business in or own businesses in the Commonwealth of the Northern Mariana Islands (CNMI).

On 28 November 2008, "the United States" as defined for purposes of the Immigration & Nationality Act (INA) just got bigger, with the addition of the Commonwealth of the Northern Mariana Islands. Although there are probably wrinkles I have not yet read in the treaty, this essentially puts the CNMI on the same footing as Puerto Rico. Here's the cute part:

Because the CNMI will become part of the "United States" as defined by §101(a)(38) of the INA, "residence or presence in the CNMI before 28 November 2009 shall NOT be considered residence or physical presence within the USA for INA purposes. Thus, on 29 November 2009, all persons physically present in the CNMI are considered "to be present in the United States without inspection, by operation of law."

Will these PWIs (present without inspection) be eligible to adjust status? Unclear? Are they working "abroad" for purposes of L visas? Yes, as it turns out. One thing is clear: Legal Permanent Residents (so-called "green" card holders) who wish to base a naturalization application based on physical presence in the CNMI will NOT be able to do so for pre-29 November 2009 periods of time. Isn't this esoterica fun? --jcf

February 5, 2010

Retina Scans Being Done at US Ports of Entry

We at Fong & Aquino in Los Angeles believe in keeping the USA safe; however, we are also aware that many security measures can be a burden. As immigration attorneys, we are alert to security mechanisms which may violate the civil rights of immigrants and visitors.

We have recently recently received a report -- which we have not yet been able to verify -- that the Philadelphia, Pennsylvania and Newark, New Jersey ports of entry are conducting retina scans on arriving non-Americans and non-Legal Permanent Residents. This is in addition to the fingerprints that are routinely taken from all US visitors.

There may be other ports of entry using the retina scan, and we would appreciate hearing from anyone who knows which other POEs are using such scans.

Although the retina scan is not intrusive and does not cause any discomfort, it is an additional level of identify verification being used by the Department of Homeland Security. Visitors should not be surprised if they are asked to permit a retina scan. --jcf

January 29, 2010

Changes to Vaccination Requirements for Immigrants

Immigrants are asked to take a medical exam before being granted legal permanent resident status in the USA. As part of this exam, immigrants are required to take various vaccinations. The immigration lawyers at Fong & Aquino in Los Angeles are often asked whether someone is required to take ALL the vaccinations.

Since November 2009, USCIS has delayed the processing of many "green" card applications, because new vaccinations criteria would become effective in December 2009. Beginning on 14 December 2009, the vaccinations for herpes zoster and human papilloma virus (HPV) were no longer required for immigration purposes.

After 14 December 2009, cases that have been held in abeyance should be processed. If your Adjustment of Status case was put "on hold" due to vaccination-related issues, the case should be revived now and processed. If you have not received a resolution of your vaccination-delayed Adjustment of Status by mid-February, you should contact an immigration attorney to do a follow up with USCIS. If you have questions about the vaccinations that you will be required to take, please contact us for a consultation. --jcf

January 26, 2010

DHS Roams Airport Terminals, Requests ID and Passports

PPT Control.pngWith all our experience counseling on immigration law questions, the attorneys at Fong & Aquino in Los Angeles do not regularly get the chance to see the day-in, day-out operations at airports and other ports of entry.

Whether it is Department of Homeland Security (DHS) policy or not, I do not know, but last week, I noticed DHS personnel roaming through the terminals at Dulles International Airport in Washington, DC. They actually went to various gates and randomly requested ID or passports from OUTBOUND passengers seated in the boarding areas.

That is, they checked the documents of both Americans and foreigners who were LEAVING the USA. Not entering.

I followed them around a little bit. The officers were friendly, civil. They approached passengers in the terminal, asked them their final destinations, and asked if they could see their passports. Interestingly, although I was standing right next to a bank of chairs in the boarding area, they did not ask me for my passport, nor did they ask anyone who was standing or walking through the terminal. They only approached persons seated in the departure gate area. I did not see them detain anyone.

I have often been asked whether DHS personnel made random checks of persons in airports. I used to say that "they could, but I've never seen it." Well, I have now. --jcf

December 20, 2009

HIV Ban Lifted

Beginning January 4, 2010, applicants for visas or greencards will no longer be considered inadmissible for being HIV positive. Early last month, the Health and Human Services Department (HHS) removed HIV (human immunodeficiency virus) from the definition of a "communicable disease of public health significance."

This marks a major success by immigration advocates like Fong & Aquino and HIV/AIDS health advocates. J Craig Fong was cited in a recent Los Angeles Times article as one of the few immigration attorneys in the nation who work with HIV positive immigrants and who has been extremely successful in HIV waiver applications with the USCIS to overcome this ban.

Fong & Aquino applauds the Centers for Disease Control, the HHS, and USCIS in recognizing that the ban against nonimmigrant visa and permanent residency applications by HIV positive individuals was wrong. --ecf

December 18, 2009

Jon and Kate Divorce is Final but What if...

Jon and Kate Plus 8, the once-popular TLC reality program about the Gosselin family, their twins and their sextuplets is kaput. But that's old news. Today, the Gosselins officially closed the chapter on their 10 year marriage with the announcement their divorce becoming final.

Divorce is always difficult. Kate says she looks forward to her future. No word from Jon...yet. For the Gosselins, they can and should move on.

But what if Jon or Kate were immigrants? What if Jon or Kate faced deportation because their marriage failed? If Jon or Kate had been granted a greencard based on their marriage, what would happen to them once their marriage ended?

This is an immigration concept called conditional residency. We represent many individuals who apply for permanent residency through their marriage to a US citizen. These are usually great cases because we are helping happy new couples stay together, and "move forward" in their lives. But what happens if the happy couple separates or divorces? In the worst scenario, USCIS will revoke or terminate the foreign spouse's conditional residency, leaving the spouse vulnerable to deportation proceedings, standing alone and at best, with competent immigration counsel at his/her side.

In revoking conditional residency and initiating deportation proceedings, USCIS looks into the nitty gritty details of what happened in that marriage, was the marriage entered into for the immigration benefit rather than purely for love? Who's fault was it that the marriage ended? And could you (the foreign national) prove it? Imagine the reality show going behind the scenes to investigate, whether it was Kate's nagging that led to the failure of the marriage, or whether Jon's alleged affairs were the actual cause of the breakup and divorce. And would you feel comfortable knowing that USCIS is your final arbiter? If you married, got conditional residency and are now in divorce proceedings or separated from your spouse, think about calling Fong & Aquino for a free consultation. ---ecf