Immigration Visa Attorney Blog

The day when you could become a US Legal Permanent Resident (LPR) simply by walking off of your boat has long passed. Since that time, paperwork or cards documenting an immigrant's status have taken various forms, the most well known being the "green card." The "green card" was a plastic laminated card issued by the US Immigration and Nationality Service (INS) so that immigrants could demonstrate that they were legally in the USA. Here in Los Angeles at the immigration law offices of Fong & Chun, virtually everyone -- even the attorneys -- will at least some of the time call the Legal Permanent Resident card "the green card" It's simply a habit.

The card ceased to be green over 25 years ago.

This week, US Citizenship and Immigration Services (USCIS, the successor to the INS) announced that it has redesigned the LPR card. It will now have a multitude of security and safety features. The redesigned card has media which will store photo and biometrics of the cardholder; holographic images and laser-engraved fingerprints are supposed to make the card "nearly impossible to reproduce." The LPR card will now also, like US Passports, have a Radio Frequency Identification (RFID) chip, allowing the card to be read from a distance.

And the card will be green once more.

USCIS will begin issuing the new cards immediately. Holders of the older green card are NOT being required to obtain the new card at this time. --jcf

An immigration lawyer who has been in practice for any respectable period of time encounters fun, funny, and bizarre situations. The attorneys at the immigration law firm of Fong & Chun in Los Angeles have, among them, 40 years of experience, and a recent article describes how the Department of Justice uses your own Google enties, and postings to Facebook, Twitter, and other social networking sites as evidence against you. If you post about the car you stole, or you post your picture taking a hit from your favorite bong, that information can be used against you!

Fong & Chun is located in the Hollywood area of Los Angeles, and we are no strangers to clients with "fast" lifestyles. Years ago, one American client applied for Legal Residence for his wife, who was from Scandinavia. Imagine their shock -- and mine -- when at the immigration interview the adjudicator pulled up photos that were posted on the couple's Facebook page -- photos that depicted a very frisky sex party that they had hosted at their Hollywood Hills home two months earlier. Not having been invited to the party myself, I had no idea about this couple's hobby, and they certainly never told me about it. Now, there is nothing illegal in California about having a some like-minded friends come for an evening's fun and recreation. However, this is hardly the kind of thing that promotes a favorable experience with generally-suspicious immigration officers. (Yes, the green card was eventually granted.)

So: at Fong & Chun, we have been telling immigration applicants for years that if there is ANYthing found on a Google search or posted on social networking sites -- even postings and activities that are perfectly legal -- that they would rather not show to the Department of Homeland Security, it would be wise to remove them. Better to be safe than to be put into the position of explaining to USCIS what you do with that trapeze in the living room. --jcf

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 & Chun 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

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 & Chun 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 & Chun to discuss your options, please call to make an appointment. --jcf

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 & Chun 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

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 & Chun 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

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 & Chun, LLP 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 & Chun, LLP 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

Because the debates about Health Care Reform are taking so much of the Congress' energy, the Obama Administration believes that Comprehensive Immigration Reform (CIR) will not be considered by the Congress until the beginning of 2010. The immigration law firm of Fong & Chun has many clients in Los Angeles, CA and throughout the nation who would benefit from the passage of CIR. In a recent article, President Obama restated his commitment to humane immigration law reform.

Two of the most anticipated provisions of CIR would be the Development, Relief, and Education for Alien Minors Act (DREAM Act) and the Uniting American Families Act (UAFA).

The DREAM Act would allow the normalization of the immigration status of certain undocument students who were brought prior to age 16 to the United States by their parents or guardians. These students have lived and been educated in the USA, and it would be fundamentally unfair to deny them immigration status, when they did not come to the USA through their own decision, and when the USA is often the only country these students have ever really known.

UAFA would correct a long-standing inequity under immigration law and would permit US Citizens and Legal Permanent Residents to petition for and bring their permanent partners to the USA on the same footing and subject to the same conditions as traditional married couples.

Although CIR will not be debated in Congress until the beginning of 2010, we are still urging Americans to be ready to write both of their Senators and their Congressional Representative in support of CIR. Further, we are also asking Americans also to write their state governors and full city councils, encouraging them to contact Washington to urge passage of CIR.

For more information about CIR, also see the Fong and Chun blogs of
29 June 2009
26 June 2009
--jcf

USCIS has recently opened an "International Adjudications Support Branch" in Anaheim, California. This purpose of this office is to help process some of the applications and petitions received from international USCIS offices. The office is meant to help overseas USCIS offices handle periodic fluctuations in work. We at Fong & Chun in Los Angeles have noticed that some of our immigration law clients' forms are being processed at this new office.

The office is located in the same facility as the Los Angeles Asylum Office, and it does not handle or accept inquiries, appointments, or walk-ins.

Currently, this support branch is handling I-601 Waiver cases -- except health-related waivers -- from the US Consulate-General in Ciudad Juárez, México. It is not yet known what other cases will be assigned to this office. --jcf

At the end of June 2009, we noticed that our Los Angeles immigration clients were experiencing delays in receiving their Legal Permanent Resident cards (LPR card, the so-called "green" card). This delay was apparently due to USCIS updating its card production equipment. As immigration lawyers, Fong & Chun is always concerned when USCIS delays the production of LPR cards, because such a delay creates enormous difficulties for clients.

We have recently noticed that our clients have received their LPR cards within one month of approval.

Whether the card production delay is over, or whether the California Service Center (where the majority of our clients's card are processed) has already had its equipment upgrade, we do not know. --jcf

Because we are a law firm devoted exclusively to the practice of immigration law, Fong & Chun, LLP of Los Angeles gets calls frequently about the so-called "millionaire green card." The more accurate name for this would be the EB-5 Employment Creation Immigrant Visa, or just "EB-5." This sometimes controversial visa provides for conditional legal permanent resident status for persons who, after November 1990, invest $1 million (or in some cases $500,000) in a new business that employs ten US citizens (or certain other authorized workers) full-time and engage in that business through day-to-day management.

There has been much criticism of the EB-5 visa; however, US Citizenship and Immigration Services (USCIS) officials declared in February 2009 their firm commitment to the success of the EB-5 program, acknowledging the value of the program to the US economy. The USCIS Ombudsman's office has made the following recommendations for the EB-5 program:

1. Quickly finalize the Special Legislative Regulations, to alleviate the so-called "stuck" EB-5 investors who have been in limbo since 1995. Improperly documented cases can drag on for years.

2. Adjudicators should be instructed not to continually readjudicate or re-examine the validity of previously approved economic methodologies and reports. Additionally, USCIS should strive for consistency in and among adjudicators for the EB-5 cases, so that outcomes can be more predictable.

3. USCIS should issue more EB-5 published decisions, to provide guidance and predictability for attorneys and investors.

4. Better rulemaking is critical, so that rules that have been developed to date can be memorialized.

5. There should be an advisory panel to discuss issues affecting the EB-5 program. Participants should include representatives from Departments of Commerce, Treasury, State, Labor, and possibly the Small Business Administration.

6. USCIS should create and offer an operationally-sound special handling option, similar to premium processing.

7. USCIS should prioritize processing of Regional Center filings. Due to the amplified economic benefit of pooled investments for the Regional Center cases, an expedited track could be important during this economic downturn.

8. There should be more active promotion of the EB-5 program.

The EB-5 employment creation visa is a complex animal. If you are interested in applying for the EB-5 visa, please contact our office. --jcf

The immigration law firm of Fong & Chun in Los Angeles has recently received quite a number of phone calls from people who are waiting for issuance, re-issuance, or replacement of their US Legal Permanent Resident (LPR) cards. US Citizenship and Immigration Services (USCIS) has been experiencing delays of 2 - 3 months due to an upgrade being made in the card-production equipment.

If you have not yet had your immigration or adjustment of status interview, please remember to bring your passport with you to the interview. If your application is approved at the interview, the officer should place "the I-551 stamp" in the passport. The I-551 stamp will temporarily allow you to travel in and out of the USA and work legally, until you receive your LPR card.

If you do not have a passport, you can bring two passport-type photos with you, plus your driver license (or other government-issued I.D.), and the officer can issue you temporary proof of your status.

For those who have an LPR application approved after the interview, or if your case did not have an interview, you should bring your passport, I.D., and passport photos to a USCIS InfoPass appointment, so that USCIS can put the I-551 stamp in your passport. --jcf

The immigration law firm of Fong & Chun in Los Angeles has received several calls about artists who have been involved in the preparations for the series of Michael Jackson concerts which were scheduled to take place in London beginning this summer. The performer's recent death has thrown arrangements for those concerts into chaos.

Although the Jackson concerts were to take place in the United Kingdom, extensive preparations were taking place both in the UK and in the United States. In preparation for any big rehearsal, event, performance, or concert, teams of make-up artists, costume designers, hair stylists, choreographers, dancers, back-up vocalists, special effects personnel, music arrangers, musicians, lighting engineers, etc. etc. come together to create the shows that so many enjoy. The number of people involved with a complex series of high-tech, music and dance spectaculars can be upwards of 50 -100 people, not all of them American.

Renowned performers and artists can qualify for the O-1 visa ("extraordinary ability in the sciences, arts, education, business, or athletics) to enter the USA. However, when something catastrophic happens -- like the death of a performer -- the performance or concert on which the O-1 visa is based is cancelled, the performer or artist risks falling out of legal immigration status.

For individuals who have visas which are predicated on a set of facts -- an individual employer, a detailed job description, a specific person, a particular school or academic program, etc., -- it is vital to consult a knowledgeable immigration attorney if there has been any substantial change, in order to preserve visa status. --jcf

Those who are patiently awaiting their EB-3 and EB-2 petitions to become current probably check the Department of State's website every month for the newest visa bulletin. Many of you have probably been in the processing queue for several years, are on AC-21 extensions of your H-1B, or are relying on your work permits (EADs), and EAD renewals year after to year so you can keep working legally while you await your "greencard." Some of you are facing situations where your children face "age out" issues and even more of you are awaiting permanent residency so you can then travel legally to visit relatives in your home country. Some may waiting abroad. Nonetheless, you are all waiting and waiting...

The July 2009 visa bulletin released by the US Department of State confirms what we already know - that waiting times are painfully long and slow. But an announcement by the US Department of State's Visa Office to the American Immigration Lawyers Association (AILA), confirms what we have dreaded along: that the situation is "dire" and will amount to extended delays beyond what you have already endured.

The Visa Office has already indicated that the worldwide cutoff date for EB-3 will be set on or around March 1, 2003. With any luck, we may see quick advances in that category near the beginning of 2010, but I'm not counting on it.

Based on current EB-3 demand, India's cut off date in October 2009 will be set at November 1, 2001 and China and Mexico only slightly better March 1, 2003 cut off dates. However, given how tough USCIS has been lately in adjudicating I-140s and even adjustment of status petitions, a lot can change between now and October 1, 2009. You should remember that these estimations from the Visa Office are just estimates.

From bad to worse: the EB-2 estimates for China and India. Come October 1, 2009, the Visa Office expects that the cut off dates for China and India will both be January 1, 2000.

EB-1 for China and India will probably experience a cut-off date in August, too.

As for religious workers who can now file concurrent I-360 and I-485 applications, you are forewarned as well. This year, the Department of State has announced that a surge of applications may also cause a cut off date before September. But since this category is still current, you should take advantage of it now!

This report underscores the need for immigration reform. Without legislative relief, these backlogs will just continue to grow. It's unrealistic to think that employers will continue to play this waiting game. The most talented of workers will be recruited by companies abroad. And if US employers have to, they will continue to outsource to the very professionals who could have generated significant revenue for our government if they were in the US paying state and federal income taxes. They could also be contributing to another program on the brink: social security. --ecf