Immigration Visa Attorney Blog

The issue of same-sex marriage is an important issue. The immigration law offices of Fong & Chun gets questions all the time at our offices in Los Angeles and Palm Springs, and throughout the nation from US citizens who wish to immigrate a same-sex spouse. The Los Angeles Times is reporting that the US Court of Appeals for the Ninth Circuit in San Francisco, California will release its decision regarding the constitutionality of Marriage Equality and Proposition 8 on Tuesday, 7 February 2012 at 10:00 a.m. (PST).

At Fong & Chun, we are counseling our clients that whether the decision is a positive one or not, couples should not submit I-130 Family Petitions and I-485 Applications for Adjustment of Status based on a same-sex marriage without first consulting with an immigration attorney experienced in working with non-traditional families. --jcf

The 2012 Republican presidential candidates have done nothing to speak clearly about immigration law and reform. Instead of speaking in clear, grown-up terms about immigration policy, they are using volatile language, demonizing immigrants. This does not advance any discussion; it is just pandering and solves nothing. This cheap talk from the Republican field is causing concern, dismay, and even panic for some of the clients of Fong & Chun, in our offices in Los Angeles, Palm Springs, and elsewhere.

In a recent article in the New York Times, candidate Mitt Romney has reportedly abandoned his usually anti-immigrant rhetoric. Why? Because he's campaigning in Florida, where over 22% of the population is of Hispanic origin! So, what is his true position? And can he be relied on to stick to it?

Candidate Newt Gingrich is not much better, because although Gingrich has rightfully observed that the USA cannot simply deport all undocumented immigrants, he has proposed few concrete solutions.

Both Romney and Gingrich have spoken in favor of one part of the so-called DREAM Act. The DREAM Act would allow young people who were brought to the USA, and who have gone to high school in the USA, to legalize their immigration status, PROVIDED (1) they perform military or other public service, or (2) they pursue post-high school education. Romney and Gingrich are saying that they would support part of the DREAM Act for those who would serve in the military -- but not for those who complete college. In other words, Romney and Gingrich would legalize those who would risk death in the name of the USA, but NOT for those who would go to college to improve the US workforce!

As we move further into this election year, it is important to recognize that the Obama Administration has tried to get the cooperation of Congress on some types of immigration reform -- and Congress has refused. It is NOT a question of whether Obama should be doing more. It is MORE a question of whether Congress will cooperate on anything the Obama Administration would propose. And given that Congress cannot even agree on when to have LUNCH, I doubt they're going to agree on immigration reform.

As the year wears on, we will try to discuss some possible immigration reforms -- reforms which will NOT create a new amnesty, NOT create a new program, but will create humane solutions. --jcf

For 2012, the attorneys at the law offices of Fong & Chun, llp, have decided to make use of Twitter to notify interested followers of immigration news. Whether you are in the fast-lane of Los Angeles business or the laid-back Desert life in Palm Springs, rapid access to news in this field is important.

Getting "breaking news" on the complex, fast-moving issues surrounding immigration is vital, whether you are a family member who wants to sponsor a relative, an employer who hires immigrants, a spouse being sponsored by an American, an investor wanting an E-2 visa to open a business in the USA, an O-1 extraordinary ability actor who is seeking a big break in the Industry, or any other visa hopeful.

To be sure, immigration laws and regulations do not always change daily, so we will not be Tweeting daily. However, whenever there is an interesting development, we will raise the issue on on Twitter, as well as point you to blogs or articles for more information.

Follow us on Twitter at: FongChunLaw

The immigration law firm of Fong & Chun has a very long history of serving the gay and lesbian community, and communities with non-traditional family structures. At our offices in Los Angeles and in Palm Springs, we are constantly asked about whether the US citizen in a married, same-sex couple can petition the alien spouse. Alas, as of today, the answer is still NO, based on the anti-gay Defense of Marriage Act (DOMA) which is still the law of the land.

The good news is that the Judiciary Committee of the US Senate today began a debate that is a first step in an attempt to repeal DOMA. After today's hearings, many people with experience on Capitol Hill believe the votes are there on the committee to send the bill to overturn DOMA to the Senate floor. However, in the Senate, there must be 60 senators -- the so-called "supermajority" -- willing to bring the question to the floor, before the measure can actually be voted on. Finally, if it passes the Senate, most experts feel the measure would die a quiet death on a committee in the House of Representatives.

There is movement in the Congress. It is important for all those for whom this is an important issue -- for their own families, for their friends, or for a fundamental fairness principle -- to contact their US Senators and Representatives to voice their support for the repeal of DOMA! --jcf

On 9 October 2011, Governor Jerry Brown of California signed the California Dream Act. This bill permits undocumented immigrants to attend California public university and community colleges, providing them access to state financial aid. Only three states in the USA permit undocumented immigrants to qualify for state financial aid for college: California, New Mexico, and Texas.

To qualify, students must graduate from a California high school, after having attended school in California for a minimum of three years. The student must also sign a declaration that they are in the process of adjusting or legalizing his/her immigration situation. It is not yet known what exactly students will be attesting to when they say they are "in the process" of legalizing.

Immigrants should be very clear: the California DREAM Act is for undocumented immigrant students wishing to go to university in this state. The California DREAM Act does NOT provide legal immigration status, does NOT make the student immune from removal or deportation, does NOT permit the student to work in the absence of an Employment Authorization Document from the US immigration authorities, and does NOT permit the student to travel out of the USA and to return.

The California DREAM Act does not address the need for comprehensive immigration reform on the Federal level.i

To be sure, the DREAM Act is a practical, realistic way to address the unarguable fact that so many undocumented immigrants now reside in California, and it is not possible to remove them all. If these students get an education, it is a long-term benefit to California. --jcf

** You are a US citizen, and you have petitioned your brother from China.

** You are a US legal permanent resident, and you have petitioned your adult, unmarried daughter from Egypt.

** You are a US citizen, and you have petitioned your married son from Argentina.

"When is my relative going to be able to immigrate to the USA. Why do we have to wait so long? I know my relative's priority date, but the dates on the Visa Bulletin swing backwards and forwards. It makes no sense!"

Strangely enough, this is one of the MOST DIFFICULT things to ask an immigration lawyer. The immigration attorneys at Fong & Chun in Los Angeles have decades of experience with the immigration system, and we still find it difficult to estimate the progress of the Visa Bulletin. We tell the client to look at the Visa Bulletin, to see which dates are being processed currently. The client calls us back and says, "the Visa Bulletin says that people in my relative's category who applied in 2003 are being processed now! Does that mean my relative must wait another eight years? (Assume we are in the year 2011.) Well, maybe, and maybe not.

The movement of priority dates on the Visa Bulletin is vastly and famously difficult to predict.  That is because guessing is difficult due to (a) the total number of visas available, (b) the number of visas permitted to each country of the world,  (c) the number of visas taken up by each petition, and (d) the time of year.

There are some technical, extremely detailed explanations about how the Visa Bulletin works. If you would like to read one -- and if you think it will help -- click here. I have read a number of these explanations, and to be honest, after 30 years of practicing law, the system is as opaque as ever. In practice, this is the way I explain the movement of priority dates when my clients ask me:

First, the US Congress has limited the maximum number of family-based immigrant visas (green cards) that can be granted each year to 480,000.  (There are exceptions to this, but they are not relevant to this discussion.) Of the 480,000, maximums are set for the visas available in each family-based category: son or daughter of a US citizen, spouse or minor child of a legal permanent resident, unmarried son or daughter of a legal permanent resident, married son or daughter of a US citizen, and sibling of a US citizen.

Why 480,000? It is a figure set by Congressional act and is based, at least in part, on the Congressional judgment of the number of immigrants that the USA can reasonably absorb in any one year.

Further: nationals of any one country of the world may not receive more than a maximum of 25,000 annually.  This does not mean that all 25,000 will be given out for each country, but it sets the maximum.

Why 25,000? Again, this number is set by Congress, and it reflects the desire not to have too many immigrants from any one single country arrive in one year, creating an unbalanced demographic picture.

This means that a low-demand country, say, Monaco or Vanuatu, would probably not use up its allotment of 25,000, across all the family-based visa categories.  However, a high-demand country, say, China or the Philippines, would have more than 25,000 people who want to immigrate to the USA in any given year.  However, even if Monaco does not use up its 25,000 visa allotment, China does not get to have more than the maximum 25,000 visas as a result!

Second, each petition can account for more than one beneficiary.  For example, let's pretend that Mr. Smith, from the United Kingdom, is married with two minor children. Mr. Smith's brother is an American citizen, and Brother files an I-130 Family Petition for Mr. Smith. So: when Mr. Smith immigrates, the one petition will end up using up four green cards: one for Mr. Smith, one for Mr. Smith's wife, and two for each of Mr. Smith's minor children.  

US immigration counts petitions not beneficiaries. This makes estimates VERY difficult.

Third, the US fiscal year begins on 1 October.  It is on this date that the "new" batch of 480,000 green cards (immigrant visas) hits the system.  This means that ANY of the unused visas for the fiscal year that just ended die -- although there are RARELY any of the 480,000 visas which go unused, given the high demand.  The new fiscal year means a brand-new start with 480,000 family-based visas.

As a practical matter, this means that US consulates begin processing many, many green cards at the beginning of the fiscal year -- October, November, December, and January.  When this happens, the priority dates begin to move rapidly.  People look on the monthly Visa Bulletin issued by the Department of State, and they see the priority dates moving like lightning.  People say to themselves, "My god: the priority date is jumping 8-9 months every calendar month!  I will get to immigrate soon!!!"

Then in February, March, and April, as the fiscal year moves on, the movement in the processing dates begins to slow to a crawl, because consular officers get cautious about processing people when there may not be enough visas to last until 30 September, to the end of the fiscal year.  Finally, in July, August, and September, the numbers stop advancing and SOMETIMES they retrogress.

My advice to any one who is waiting for the arrival of a priority date: regularly watch the State Department's  Visa Bulletin, which comes out on the 15th of each calendar month.  This will provide you with a better idea of how the priority date is advancing. --jcf

President Obama addressed the nation in a highly anticipated speech on immigration reform from El Paso, Texas. Many have criticized the President's speech because he offered little in detail but spoke in broad terms.

The immigration attorneys at Fong & Chun would like to note that while deportations have increased under the Obama administration, President Obama reiterated that legalization should be offered to the undocumented, but with an emphasis on accountability. The President stated clearly: "those who are here illegally have a responsibility as well ... they have to admit that they broke the law, pay their taxes, pay a fine, and learn English. And they have to undergo background checks and a lengthy process before they can get in line for legalization."

The President also weighed in on the hallmark of immigration: family reunification. President Obama said "I don't believe the United States of America should be in the business of separating families. That's not right. That's not who we are."

As immigration advocates, Fong & Chun applauds the President's focus on securing our borders in a way that reunites families and that serves our national security and business interests. And as long-time advocates in the GLBT community, we hope that the President's silence regarding DOMA and its prohibition on immigration relief for same sex spouses is not an indication of the Administration's lack of commitment toward rectifying the inequities that have caused the painful separation of non-traditional families. Because as the President said, that's not who we are. --ecf

The immigration lawyers at Fong & Chun in Los Angeles have many, many Japanese clients. In response to the devastation caused by the earthquake around Sendai, Japan yesterday, the US Citizenship and Immigraiton Services (USCIS) issued an advisory to Japanese nationals and others who cannot return to their home countries due to earthquake and tsunami disruption in the Pacific region. This is of particular importance to those who are here on visitor visas (B-1 or B-2), visa waiver, or other non-immigrant visas such as H-1B, L-1A, L-1B, E-1, E-2, F-1, J-1, M-1, etc.

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

However, the USCIS advisory, issued at 5:35pm today advises that people should visit their local USCIS office if they have overstayed their I-94s or will become an overstay because they cannot now return to their homes in the Pacific. In certain cases, the USCIS may allow for an additional 30 days be granted in order to depart without facing unlawful presence or other serious immigration violation. USCIS will likely control such applications with high scrutiny and enforcement. We do not recommend that Japanese citizens go to USCIS to obtain assistance without first consulting an immigration attorney.

Call the immigration attorneys at Fong & Chun, LLP. We are in the Hollywood area of Los Angeles. We can help you with this process. If needed, we can provide legal representation if you are facing overstay issues, unlawful presence, or other potential violations such as unauthorized employment because of the devastation in Japan and the Pacific. --ecf

Japan: an 8.9 earthquake has rocked Japan today, marking the most powerful earthquake in Japan's recorded history. This quake is the fifth most powerful in the world since 1900, says the U.S. Geologic Survey. Tokyo reports massive aftershocks. Narita Airport, Sendai Airport remain closed, although Haneda Airport has reopened already. The immigration attorneys at Fong & Chun, LLP who practice in business immigration, family-based immigration, removal defense and appellate work extend sympathy and concern to all our Japanese clients and those with family and friends abroad who are affected by this devastating disaster.

Over the years, the immigration attorneys at Fong & Chun, LLP have worked proudly in the Japanese immigrant community, having represented multinational executives and managers for some of Japan's largest corporations, professors providing invaluable research and teaching in top U.S. universities, professional employees working in companies based in Little Tokyo and in Japanese American non-profit organizations, and of course, countless individuals and families of Japanese descent.

With early reports of the death toll, the true damage the earthquake has caused remains unknown at this moment. We do know that this earthquake may cause tsunamis powerful enough to engulf or wash over small islands in the Pacific causing more damage and posing continued danger to those in the Pacific. For clients wishing to return to Japan in the weeks to come, please call the attorneys at Fong & Chun, LLP for guidance on how to check the US Department of State for travel warnings and other restrictions. ---ecf

Congressional hearings will soon take place to "highlight and investigate" the threat that radical Islam might pose to the USA. These short-sighted hearings, called by republican Congressman Peter King of New York, are supposed to merely investigate the question; however, many people -- including the immigration attorneys at Fong & Chun in Los Angeles -- are concerned that the hearings will be an excuse to demonize Muslims and others of middle eastern origin and create a climate of suspicion and hatred.

Already, immigration lawyers here at Fong & Chun have noticed that several cases we are handling -- involving persons from predominantly Muslim countries -- have been side-tracked, investigated, and in other ways delayed by US Citizenship & Immigration Services (USCIS). These cases have been unnecessarily subjected to delays, and there has been no explanation forthcoming from USCIS. Simply more and more delay.

There is no doubt that the US must investigate threats to national security; however, to do so in a way that broadly demonizes the faithful of any particular religion, nationality, or ethnicity is wrong. This is what was done to Japanese-Americans during World War II, and it should not be repeated in 2011. --jcf

It's been a busy time since yesterday, when the Obama Administration announced it would no longer defend in court the section of the Defense of Marriage Act (DOMA) that would deny Federal benefits to same-sex couples who are legally married. The phones here at Fong & Chun in Los Angeles have been ringing off the hook. In my many years as an advocate for gay and lesbian immigrants, I do not think I've received as many calls in one day, from Palm Springs to Providence, from West Hollywood to Washington, all asking the $64,000 question: "Can we get married and file our Spouse Petition now?"

First, to give you fair warning, I am going to punt the answer to that question down field. I think that -- at this moment in the legal process -- it would be prudent to think of SAFETY, to look at the facts of each couple before advising whether to file the paperwork. Why? Because there are simply too many variables right now, and we have no assurance from the immigration authorities that they won't run out, arrest, and quickly deport an undocumented alien the moment they know where s/he is.

Next, the Obama administration has said that they will no longer defend DOMA in court. This is NOT the same as saying that they are freely granting equal rights to all same-sex married couples for tax, social security, or immigration purposes. I anticipate that -- as well-meaning as the administration may be -- the powers-that-be at US Citizenship and Immigration Services will fight tooth and nail until specifically ordered by the White House to recognize same-sex marriages.

Further, remember that US immigration law grants green cards for married couples, not those in civil unions, registered partnerships, pacte civile de solidarité (PACS), or some other form of union. The change in the treatment of DOMA does not change the basic language of the Immigration and Nationality Act -- an actual legal marriage will be required in order to claim a green card for the spouse of a US citizen.

Finally, although we expect a degree of consistency from Federal government rulings, it is not clear whether the American in a couple legally married in, say, Canada, now living in Arizona, would be eligible to apply for the Canadian spouse. Why? Because Arizona does not recognize same-sex marriages, and although the marriage is legal in Canada, I cannot anticipate what the US government would do about this. The analysis might be different if the couple were living in Massachusetts, where same-sex marriages are legal and recognized. In my view, these two scenaria should be treated the same; however, the law can be as slippery as an eel.

For the moment, brothers and sisters, I urge caution. Keep your partner/spouse safe and out of the hands of immigration officers. --jcf

A bill was proposed in Arizona that would force hospitals to check the immigration status of patients. Like many advocates for immigrants, family immigration lawyers at Fong & Chun see many situations here in California where such a bill would discourage people who genuinely need medical help from seeking that assistance. It appears that this proposed law -- a bad immigration idea, and a bad public health idea -- was removed from consideration by the Arizona Senate today.

For very good reasons, doctors and other health care providers would not want to be forced into the role of immigration officers. Health care professionals must establish a relationship of trust with their patients, and if the patient is afraid s/he might be turned in, the patient might not seek needed medical care. Whether we like immigrants or not, it is not a good idea from a public health point-of-view to allow sick or injured people to walk around untreated.

Serious contagious conditions like tuberculosis, H1N1 influenza, whooping cough, measles, and many others should be treated -- no matter who contracts them. It is in America's best public interest to keep such diseases under control. --jcf

In recent years, the immigration attorneys at the law office of Fong & Chun in Los Angeles have heard an increasing number of horror stories of people who have sought legal advice or assistance from consultants, non-lawyers, and notaries public. In many of these cases, the advice given or the work done has been seriously flawed -- and it is the immigrant who suffers. USCIS is starting to crack down on those who are not qualified to advise immigrants.

An immigration consultant or notary is not the same as an immigration attorney. They are not trained to recognize fact patterns, not trained to read and analyze the law and statutes, and they are not required to stay current on recent developments. For all these reasons, even if someone does not want to work with me -- and everyone is entitled to a preference -- I urge anyone with an immigration case to seek the counsel of a licensed attorney. Because US immigration law is a Federal matter and not a State matter, an attorney licensed in any of the fifty states or the District of Columbia will suffice, as long as s/he focuses on immigration and nationality law.

US Citizenship and Immigration Services (USCIS) is beginning to collect information and investigate persons who are engaged in the unauthorized practice of law. The investigations are starting in selected areas and will go nationwide afterwards. --jcf

Just last night, Majority Leader Reid (D-NV) filed a new version of the DREAM Act in an effort to get the 60 required votes to pass the Senate where a vote may occur as early as Monday.

This new version of the DREAM Act includes the following provisions:

• Excludes from eligibility those with certain criminal convictions, such as for offenses punishable by a maximum term of more than 1 year (felony) or 3 misdemeanors
• Requires all applicants to provide their biometric data to DHS, to submit to background checks and medical examination, and to register for military selective service
• Requires applicants to pay all taxes
• Sets the cut-off age to those who are less than 30 years-old on the date of enactment
• Provides a "safe harbor" from removal only to those applicants who present a prima facie case of eligibility
• Extends the good moral character requirement back to the date the alien entered the United States rather than the date of enactment of DREAM
• Expands the applicable grounds of inadmissibility to include the health-related, public charge, smuggling, draft dodging, and unlawful voting grounds
• Expands the applicable grounds of deportability to include public charge, unlawful voting, and marriage fraud grounds
• Excludes those who participated in persecution
• Clarifies that no one can apply before 1 year after enactment
• Requires applicants to demonstrate eligibility by a preponderance of the evidence
• Eliminates repeal of the in-state tuition ban
• Defines institution of higher education to include only U.S.-based programs
• Requires those who subsequently apply for adjustment to meet the English language and civics requirements typically required for naturalization
• Expands the circumstances where disclosure of confidential information about DREAM applicants is required for homeland security or national security purposes
• Creates conditional nonimmigrant status for 10 years, followed by 3 years of LPR status prior to application for naturalization

The attorneys at Fong & Chun urge you to to show support for the DREAM Act by calling your member of Congress today. ---ecf

Please remember that fees for most filings with US Citizenship and Immigration Services (USCIS) will increase on 23 November 2010. Applications submitted with incorrect fees will be rejected, and such a rejection could result in the applicant falling out of status in the USA, so it's important to be sure to file with the correct fee.

The USCIS statement about the increased fees, and the list of the increased fees, can be found here. --jcf