Immigration Visa Attorney Blog

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

As immigration attorneys with very strong roots in the immigrant communities of Los Angeles, the lawyers at Fong & Chun 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

All immigration law attorneys must deal with foreign countries, unique international legal issues, and some quaint interpretations of law. The lawyers at Los Angeles' Fong & Chun 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

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

At a ceremony at the White House today, President Barack Obama announced the publication on Monday, 2 November 2009 of the final rule repealing the HIV immigration restriction. The immigration lawyers here at Fong & Chun have worked here in Los Angeles and nationwide as part of the movement to have this onerous restriction on people with HIV/AIDS repealed. More details to follow, after we have seen and reviewed the "final rule." --jcf

On 14 October 2009, Congressman Luis Gutíerrez of Illinois released a set of principles which he hopes will be incorporated into any Comprehensive Immigration Reform (CIR) package. As advocates for immigrants, the attorneys at the Los Angeles-based immigration law firm of Fong & Chun, we watch closely any progress on CIR.

Central to his approach are:

1. a rational and humane approach to resolving or legalizing the status of the undocumented population,

2. a mechanism to protect US and legal immigrant workers,

3. allocation of sufficient visas to stop immigrants from trying to "cut in line" or "jump the queue" and get to America earlier but illegally,

4. enhancements to protect the US homeland,

5. establish a wise border enforcement policy that reflects America's needs and values,

6. keeping together and unifying American families,

7. promotion of immigrant integration,

8. inclusion of the DREAM Act and AgJobs bill, and

9. protection of fundamental rights.

Representative Gutíerrez' statement of principles is an excellent first step as the debate over CIR begins. --jcf

Since July 2008, the County of Los Angeles has posted 81 people in 27 social service offices to check and verify immigration status of all applicants for social services. As the debate continues on health care, the lawyers at the immigration law firm of Fong & Chun in Los Angeles remain concerned that immigrants are being made the scapegoats for a dysfunctional health-care system that they have had no hand in creating.

According to an article in today's Los Angeles Times, Los Angeles County has so far not found one illegal immigrant masquerading as a legal resident in order fraudulently to obtain social benefits. Among Medi-Cal applicants, only about 0.1% of the total applicant pool was found to be ineligible because of immigration status.

One has to ask the question: is the expense of this verification system worth what we're paying for it?

One federal study noted that the records-verification system implemented in 6 states cost about $16.6 million in administrative costs -- and found only eight undocumented immigrants.

Please contact your Senators and Representative to let them know that health-care reform is important for our nation, and that immigrants should not be used as an excuse for not providing the health care that Americans must have. --jcf

Representative Joe Wilson's outburst on the floor of the House of Representatives, effectively calling the President a liar has continued to resonate throughout the country. As advocates for immigrants, Los Angeles immigration lawyers at Fong & Chun have warned that immigrants will be used as scapegoats during the health care debate. And so they have.

The fact that Congressman Wilson was told by Republican party leaders to immediately call the White House to apologize should be a signal; Wilson did not choose to apologize himself. He has maintained that he is right, despite the facts. Instead, we are worried that he will become a symbol to radical right-wing activists that it is perfectly alright to shout down the President, perfectly acceptable to simply interrupt anyone with whom one disagrees, perfectly acceptable to ignore facts. This type of approach leads to a my-way-or-the-highway approach to politics, and no one gains from that.

We believe that as the debate on Comprehensive Immigration Reform (CIR) begins in 2010, this form of argument, simply cutting off or shutting down civilized discussion, will become worse. This is a danger to our democracy and will harm immigrants and our country.

We have already written about how these tactics cheapen our legislative process. We urge all immigrants, friends of immigrants, and advocates for immigrants to be alert in the coming months. Stand up for our friends! Encourage oure elected officials, our neighbors, and our friends to Welcome the Stranger. Be sure to write to your elected officials, urging them to support CIR and giving them the support needed to stand up for immigrants. --jcf

It is sometimes saddening and discouraging to be right. Yesterday, immigration attorneys at the law firm of Fong & Chun in Los Angeles cautioned in our blog that immigrants would be used to score points in the health-care debate. Last night (Wednesday, 9 Sept 2009), almost like a pavlovian response, a republican Congressman, Joe Wilson, heckled and insulted President Barack Obama during the President's speech to a joint session of Congress on the question of health-care reform, using immigrant access to health care as the excuse.

During a speech describing his plan for health-care reform, the President clearly stated that no Federal money would be spent providing "illegal immigrants" with government-subsidized health care under his proposed plan. Wilson, a representative from South Carolina, shouted out, "you lie!"

It is sad that the debate has sunk to this level. Here's why:
- The republican congressman transmits the message that it's OK to heckle anyone, even the President, when you disagree.
- When a Congressman calls the President a liar, right in the Capitol, it gives everyone else permission to say what they like, where they like, to whomever they like, regardless of how disrespectful or unhelpful the statement may be.
- It reduces the level of discourse and debate in this country to all-or-nothing politics, and it encourages people to think that this is the best way to address the nation's difficulties.
- The charge of "you lie" says that no matter what one says, no matter what evidence one has, no matter what the facts show, you can simply discount and disregard something someone has to say by saying "you lie." This means that people don't have to engage, they don't have to look at the facts, they don't even have to listen -- they can just say, "I don't believe you," and that is the end of discussion.

Finally: we can see that certain factions of the USA will begin to use immigrants as a wedge, to delay or even halt all kinds of legislation needed for our nation, simply by saying that immigrants will gain some kind of benefit. They will even try to prohibit immigrants from using their own money to purchase health insurance on the open market. What's next? Will they prohibit immigrants from buying gasoline? Toilet paper?

Keep in mind that the debate over comprehensive immigration reform has not yet even begun in Congress. It becomes urgent that as the irrational attacks on immigrants escalate, people who know the truth speak out. "Call out" the nay-sayers. --jcf

The immigration law firm of Fong & Chun in Los Angeles is devoted exclusively to advocacy for immigrants. Recently, those opposed to meaningful health-care reform have started to use the immigrant community as a political whipping boy once again, using scare tactics and making false claims about immigrants' use of, payment for, and access to health care.

Some important facts to keep in mind in this debate:

First: If more participants -- including immigrants -- pay into the insurance system and are covered by some health-care plan, this spreads risk over a larger group. It means that more people who need health care will be able to get it.

Second: There is a large group of people in this country who are not covered by meaningful health insurance. Over 40 million people. The vast, vast majority -- 78% -- of those without medical insurance are Americans! Legal and undocumented immigrants account for only 22% of the uninsured who are under MediCare age.

Third: It is simply untrue -- I repeat, UNTRUE -- that immigrants impact the health-care system disproportionately. A July 2009 study in the American Journal of Public Health found that immigrants not only use LESS medical care than Americans, but when they do use health care, they use LESS EXPENSIVE health care. Immigrants' per-person medical expenditures are 50% - 66% less than expenditures for the average American-born person.

Finally: Recent immigrants were responsible for about 1.4% of total public medical costs, even though they only constitute 5% of the population.

Access to quality health care is a simple human right which a government should provide its people. As the debate intensifies, we hope no one forgets to include this nation's immigrants. --jcf

The Bush Administration, in its final days, implemented rules to make it easier for farmers to hire temporary foreign laborers. These rules also arguably cause the reduction of wages and the proliferation of poor working conditions for all farmworkers, foreign and domestic. Although the immigration law firm of Fong & Chun is in Los Angeles, we have had inquiries about the wages and conditions of employment faced by foreign farmworkers.

The Obama administration today moved to roll back some of those Bush Administration rules. This roll-back is expected to result in an increase of about $1.44 per hour for the average wage for farmworkers -- who often do back-breaking work for very long hours. The change in rules would also protect American workers from being displaced, if Americans wish to apply for and take such jobs. --jcf

On 18 August 2009, the Obama Administration issued new directives about the inspection, search, and even seizure of electronic media belonging to travelers passing through border checkpoints. This set of policies and practices has concerned immigration lawyers, constitutional attorneys, and other civil rights advocates, including the immigration attorneys at Fong & Chun in Los Angeles.

All electronic media devices are susceptible to search: computers, hard drives, thumb-nail drives, mp3 players, iPods, mobile phones, CDs, DVDs, Blackberrys, etc.

This practice of inspecting, detaining, and even copying travelers' electronic media -- without a warrant or even suspicion -- began before the Bush Administration's so-called "war on terrorism." Given the amount personal information that people keep on their digital devices, attorneys and constitutional advocates have worried that such searches and seizures can be potentially more intrusive than having a border guard riffling through one's luggage.

In some cases, victims of these searches have suspected that the border guards had cracked password-protected files and were copying and keeping information from these devices, which were detained for periods of time ranging from minutes to weeks.

The new directives continue the Bush Administration practices, with some (in this author's view, small) degree of oversight:

- Supervisors must be present during the search,
- Border guards may still keep your electronic media device, but only if there is "probable cause" that it is connected to some illegal activity,
- If there is no reason to hold the information, it must be destroyed within 7 days,
- The traveler may ask to be in the room when the search takes place,
- Border guards are expected to consult Homeland Security attorneys if they wish to view voyagers' medical, legal, or medical records, or journalists' work, and
- there is a 30-day limit for the detention of media and devices.

If you would like to read the directive for yourself, it can be found here. --jcf

The Los Angeles immigration law firm of Fong & Chun would like to acknowledge the passing on 25 August 2009 of Senator Edward M. Kennedy, US Senator for the State of Massachusetts.

Not merely the scion of a famous family, Senator Kennedy was a champion on issues close to the hearts of many immigrants: immigration reform, education, union representation, and health care. Deeply aware of his own background and immigrant roots, Senator Kennedy helped craft the Diversity Visa, the so-called "green card lottery," that has permitted so many people from different nations to immigrate to the USA when no other avenue was available to them.

His voice will be missed. --jcf

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