General Instructions: How to Apply for I-601 Extreme Hardship Waiver in Certain European Countries? What are Extreme Hardships?

Certain foreign nationals may be required to file for a Form I-601 Application for Waiver of Ground of Inadmissibility when applying for immigrant visa at the U.S. Consulate abroad. Immigrant visa is one of the processes for obtaining green card status in the United States. An I-601 extreme hardship waiver is required, for example, when an applicant was unlawfully present in the United States for a certain period of time and now has a time bar from re-entering the United States; or has committed certain legal violations. This is not an exhaustive list of examples.

There are many unanswered questions to the application process for I-601 extreme hardship waiver. Consistent adjudication, handling and/or processing time, across all adjudication offices abroad for I-601 extreme hardship waiver are often being reviewed by the U.S. immigration branches in their efforts to improve the provision of such immigration service abroad and to promote family unification in the United States, while conforming with due diligence in executing and complying with the U.S. immigration law.

The following are some general information on I-601 extreme hardship waiver applications:

1. Who adjudicate the I-601 extreme hardship waiver applications?

The U.S. Citizenship and Immigration Services (USCIS) adjudicate the I-601 cases. The USCIS is a government agency that oversees lawful immigration to and in the United States. The USCIS is a branch of the U.S. Department of Homeland Security (DHS).

2. Where do I submit the I-601 extreme hardship waivers to?

For applicants outside the United States, the I-601 extreme hardship waiver applications are submitted at their U.S. Consulate abroad (i.e. the consular section of the U.S. Embassy). The U.S. Consulate reviews the I-601 filings for supporting documentation and then forward them to the appropriate USCIS Field Office. The USCIS Field Office adjudicating the I-601 extreme hardship waiver application is located at the U.S. Embassy in the same or in another country.

Applicants residing in the United Kingdom must send in their I-601 extreme hardship waiver applications to:

Mailing Address – From the United States
USCIS Field Office – London (I-601)
Unit 8400, Box 26
FPO AE 09498-0026

Mailing Address – From Outside the United States
USCIS Field Office (I-601)
American Embassy (DHS/USCIS)
Post Office Box 2444
London W1A 5WT

Physical Address for Express Delivery
USCIS Field Office (I-601)
American Embassy (DHS/USCIS)
24 Grosvenor Square
London W1A 1AE

For applicants residing in European countries such as Denmark, Finland, Iceland, Republic of Ireland, Norway, and Sweden, their I-601 extreme waiver applications are forwarded by their applicable U.S. Consulates to the USCIS Field Office in London, United Kingdom, for adjudication.

3. Where are the I-601 extreme hardship waiver applications adjudicated?

For I-601 extreme hardship waivers filed with U.S. Consulates abroad, the USCIS Field Offices for I-601 waivers that are normally located abroad adjudicate them.

4. What documents should the applicants include in the I-601 extreme hardship waiver application package?

The London USCIS Field Office has provided, among other things, a checklist and guidance for their I-601 extreme hardship waiver application process. Applicants residing in the United Kingdom are recommended to submit their I-601 extreme waiver application with documentation in certain order. For further detailed instructions, please visit http://london.usembassy.gov/dhs/uscis/ivwaiver.html .

5. What is “extreme hardship”?

“Extreme hardship” to qualifying relatives (U.S. citizen or lawful permanent resident relative) in U.S. immigration law requires hardships beyond the normal and usual hardships resulted from family separation. In general, the umbrella factors of “extreme hardships” to “qualifying relative(s)” may include, but are not limited to, medical/health, occupation, education, religion, finance, etc. An I-601 extreme hardship waiver application is adjudicated on a case-by-case and discretionary basis after considering all the circumstances of the case.

The U.S. immigration regulations have not defined the criteria of “extreme hardship” for I-601 extreme hardship waiver, and therefore, there are inconsistencies and lack of uniformity on the standards that would sufficiently constitute “extreme hardships” as well as the best materials to provide. Furthermore, the adjudication and grant of a waiver such as an I-601 waiver are inherently highly discretionary.

In general, applicants should consult with or seek help from a licensed and experienced U.S. immigration attorney in preparing “extreme hardship” package.

6. How do I check my case status?

For I-601 extreme hardship waiver applications being adjudicated by the London USCIS Field Office, the USCIS will notify the applicants with their I-601 receipt numbers which they can then use to track their case status at http://london.usembassy.gov/dhs/uscis/ivwaiver.html .

By Aik Wan Kok Fillali, Attorney at Law, at Tiya PLC; Tel: 703-772-8224
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law.

All Rights Reserved
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Considering Filing H-1B or L-1? Additional Fee Applies to Certain New or Change of Employer Petition (Effective August 14, 2010)

Effective August 14, 2010, there will be an additional fee for filing certain H-1B or L petitions; $2000 for H-1B and $2250 for L-1. This new fee, where applicable, is in addition to the existing government immigration fees applicable to H-1B and L-1 work visas. This new fee will remain effective until September 30, 2014.

This additional fee requirement applies to new petitions and petitions to change employer filed by petitioners or employers that employ 50 or more employees in the United States, with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

H-1B is a temporary work visa for foreign nationals to work in occupations requiring at least the relevant Bachelor’s degrees, or equivalent.

L-1 is a temporary work visa for a U.S. company to transfer certain foreign national employees from one of its affiliated foreign offices to one of its existing or newly established offices in the United States. L-1 temporary work visa applies to foreign national employees who will be transferred to the U.S. as an executive or manager, or a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, individuals and families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

ICE: Prison Terms for Employers/Conspirators for Harboring, Transporting and Employing Illegal Aliens

5 residents pled guilty, on July 16, 2010, to knowingly harboring, transporting and employing illegal aliens, as a result of an investigation by U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI) agents (such as special agents).

ICE’s, an investigation agency of the U.S. Department of Homeland Security (DHS), functions are to protect national security, public safety and the integrity of the U.S. borders by enforcing criminal and civil federal laws governing border control, customs, trade and immigration.

The defendants transported and paid cash to these illegal foreign nationals for employment at various work sites, and used various properties to harbor and conceal them, to gain competitive economic advantage over their competition in the chicken industry. The defendants were sentenced to at least 12 to 30 months in prison, with supervised release thereafter, and forfeiture of properties totaling over $1.87 million.

It is important to be proactive in legal compliance:
1. Employers or their personnel should comply with various laws such as immigration, employment and tax law when hiring personnel in the U.S.
2. Before immigration crisis such as investigations, arrests, detention or removal/deportation, families living with or having relatives without legal immigration status in the U.S. should seek professional legal immigration help to legalize their immigration status within legal and ethical boundaries.

For further information, please visit ICE News Release at http://www.ice.gov/pi/nr/1007/100720fortsmith.htm .

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Haiti TPS Registration Extended Till January 18, 2011 (Can Apply for EAD & Advance Parole; Based on Separate Immigration Eligibility/Application, Approved TPS Beneficiary May Apply for Nonimmigrant Status or Green Card)

On July 12, 2010, the U.S. Citizenship and Immigration Services (USCIS) announced that the registration period for Temporary Protection Status (TPS) for eligible foreign nationals from Haiti has been extended from July 20, 2010 until January 18, 2011; allowing Haitians up to January 18, 2011 to apply for registration of TPS.

Eligible Haitian applicants must have been continuously present in the U.S. since January 12, 2010 to apply for TPS, and must submit their TPS registration by or before January 18, 2011.

Applicants may also apply for Employment Authorization Document (EAD) with their TPS applications. Filing fees apply but may be waived at the discretion of the USCIS on a case-by-case basis, upon reviewing the circumstances of the fee waiver request for each case.

Qualify TPS beneficiaries may apply for green card, other nonimmigrant or visa status, based on other non-TPS immigration sponsorships/applications. Some may require separate waiver applications when applying for immigration benefits. For those who have advance parole documents to travel internationally, they must have their immigration thoroughly reviewed before they embark on any international travels.

All TPS beneficiaries/applicants should have their immigration history status thoroughly reviewed as they may need separate waiver applications; or may be eligible for green card or other visa benefits.

For further information on I-601 waiver applications/cases, please also read our articles on “Permanent or long-term residency in the U.S. does not mean “permanent”, even for those with U.S. citizen spouse/child(ren), I-131 advance parole/re-entry permit, and/or green card!" at http://tiyalaw.blogspot.com/2010/04/permanent-or-long-term-residency-in-us.html and “I-601 Waivers: Improvement in Standards for Extreme Hardships, Concurrent Filings With I-130 Alien Relative Immigrant Petition, Adjudication, Processing Time Are Coming Soon!” at
http://www.immigrationresource.net/united-states-of-america/us-visas/i-601-waivers-improvement-in-standards-for-extreme-hardships-concurrent-filings-with-i-130-alien-relative-immigrant-petition-adjudication-processing-time-are-coming-soon/

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net
We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

TPS for El Salvadorians Until March 9, 2012

On July 12, 2010, the U.S. Citizenship and Immigration Services (USCIS) announced that the U.S. Department of Homeland Security (DHS) will extend the temporary protection status (TPS) for another 18 months for eligible El Salvador nationals, from the current expiration date of September 9, 2010 to the new expiration date of March 9, 2012.

To qualify, eligible applicants must submit their TPS applications to the USCIS between July 9, 2010 and September 7, 2010. The applicants must apply within this time frame to avoid immigration complications. Applications outside this time frame may be possible depending on the circumstances of each case.

For existing TPS beneficiaries seeking re-registration of their TPS, the USCIS will automatically extend existing employment authorization documents (EAD) held by TPS beneficiaries for 6 months, until March 9, 2011 but they must still apply for their re-registration of TPS between July 9, 2010 and September 7, 2010. For those seeking to extend their EAD, they must also submit their applications to extend their EAD.
For eligibility, the applicants must meet the following criteria including, but are not limited to:

1. Applicants must be a national of, or for those without a nationality, last habitually resided in El Salvador;
2. Applicants must have been continuously resided in the United States since February 13, 2001; and
3. Applicants must have been continuously present, physically, in the United States, since March 9, 2001.

Late applicants or late registrants may apply for this TPS benefits if they could demonstrate that in 2001, the applicants were in valid nonimmigrant status or had other form of immigration relief(s) such as:
1. Voluntary departure;
2. Relief from removal;
3. Parolee or pending re-parole application;
4. Being a spouse or child of a foreign national currently eligibly to be a TPS registrant; OR
5. Have pending application for one of the following:
(a) Adjustment of status
(b) Change of status
(c) Asylum
(d) Voluntary departure
(e) Removal, including those under review or appeal

Qualify TPS beneficiaries may apply for green card, other nonimmigrant or visa status, based on other non-TPS immigration sponsorships/applications. Some may require separate waiver applications when applying for immigration benefits. For those who have advance parole documents to travel internationally, they must have their immigration thoroughly reviewed before they embark on any international travels. All TPS beneficiaries/applicants should have their immigration history status thoroughly reviewed as they may need separate waiver applications.

For further information on I-601 waiver applications/cases, please also read our articles on “Permanent or long-term residency in the U.S. does not mean “permanent”, even for those with U.S. citizen spouse/child(ren), I-131 advance parole/re-entry permit, and/or green card!" at http://tiyalaw.blogspot.com/2010/04/permanent-or-long-term-residency-in-us.html and “I-601 Waivers: Improvement in Standards for Extreme Hardships, Concurrent Filings With I-130 Alien Relative Immigrant Petition, Adjudication, Processing Time Are Coming Soon!” at
http://www.immigrationresource.net/united-states-of-america/us-visas/i-601-waivers-improvement-in-standards-for-extreme-hardships-concurrent-filings-with-i-130-alien-relative-immigrant-petition-adjudication-processing-time-are-coming-soon/ or http://tiyalaw.blogspot.com/2010/06/improvements-in-adjudication-standards.html

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

ICE Immigration Enforcements & Compliance with U.S. Immigration Law

The U.S. Immigration and Customs Enforcement (ICE), a department within the U.S. Department of Homeland Security, is responsible for a broad-range of civil enforcement of U.S. immigration law such as the apprehension, detention and/or removal of non-U.S. citizens or foreign nationals. Given its finite resources, scope of enforcement actions, and the enormous immigration or administrative violations in the U.S., ICE only has resources to remove approximately 400,000 non-U.S.-citizens each year (which is less than 4% of the estimated foreign nationals illegally present in the U.S.), and must prioritize its enforcement actions.

ICE’s priority is to secure the U.S. national border, and to safeguard the U.S. national security and public safety. For this reason, ICE has reiterated its priorities in civil immigration enforcement in the following categories of foreign nationals or non-citizens:

1. Priority 1 will be placed on foreign nationals or non-citizens who pose a danger to national security or risk to public safety. These foreign nationals include, but are not limited to, those suspected of terrorism/espionage and involved in certain crimes.

2. Priority 2 will be placed on foreign nationals who committed recent violations of illegal entries (attempted entries or otherwise).

3. Priority 3 will be placed on immigration fugitive foreign nationals or those obstructing U.S. immigration law. These foreign nationals include, but are not limited to, those who are involved in certain crimes, ordered removed/failed to depart the U.S., re-entered illegally upon removal, obtained (or attempted to obtain) immigration benefits by fraud.

It is extremely important for foreign nationals traveling to or for those already in the U.S. to adhere to and comply with the complex U.S. immigration law to avoid serious immigration complications. This applies to U.S. lawful permanent residents (LPR) as well as compliance with other U.S. laws. Some of the general matters to consider include, but are not limited to, not overstaying the period of authorized stay (such as the expiration date as endorsed on the I-94 departure/arrival record for non-LPR); not accepting employment in the U.S. without first seeking proper immigration authorization; not perpetrating, committing or attempting to commit visa or immigration fraud; not committing or attempting to violate U.S. criminal law.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

U.S. Citizen Pled Guilty to Marriage Fraud & Sponsored Wife is Now a Fugitive

As a result of an investigation conducted by the U.S. Immigration and Customs Enforcement (ICE), on June 22, 2010, a 25-year-old U.S. citizen pled guilty to marriage fraud in that he entered into a phony marriage with a Cambodian national for the purposes of assisting her to evade U.S. immigration law and to obtain U.S. permanent residency.

In exchange for entering into the fraudulent marriage, the U.S. citizen was paid about $7000, and the marriage fraud conspirators also paid for his other various expenses such as his overseas trip to Cambodia to meet with a Cambodian female for the purpose of establishing a bogus relationship to sponsor her to the U.S., and sexual services with a different Cambodian woman.

The Cambodian female arrived in the U.S. using a K-1 fiancée visa. The U.S. citizen and the Cambodian got married. Later, they participated in an immigration marriage interview, and falsely represented to the U.S. immigration official that they had a good faith marriage for the purpose of allowing her to obtain U.S. lawful residency as a spouse. Subsequently, they got divorced.

The U.S. citizen now faces a maximum potential punishment of 10 years imprisonment, $500,000 fine, and supervised release of 6 years.

Marriage fraud is also an extremely serious immigration violation for non U.S. citizens entering/participating in such schemes. The ex-spouse is now a fugitive and is wanted by ICE.

For more information, please see ICE News Release at http://www.ice.gov/pi/nr/1006/100622louisville.htm .

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

U.S. Consulates in China are Opening on Saturdays for Several Weeks!

Business and tourism between China and the United States have grown dramatically (especially in 2010) and they are expected to continue growing, over the years. As a result, the U.S. consulates across China have also seen a corresponding rise in visa applicants and wait times for visa appointments. In 2009, 66% of the visas issued by the U.S. consulates in China were for business and tourism to the United States.

In their efforts to meet the extraordinary growth in visa demands, the U.S. consulates in China are actively expanding their staffing and enhancing their technological systems, as well as working over the holidays. For example, over the next few weeks, through the “Super Saturday Visa Program”, the U.S. Embassy in Beijing, and four U.S. consulates in China, will be opening on Saturdays for the increased Chinese applicants seeking visas to travel to the United States.

IIt is extremely important for foreign nationals traveling to or for those already in the U.S. to adhere to and comply with the complex U.S. immigration law to avoid serious immigration complications. This applies to U.S. lawful permanent residents (LPR) as well. Some of the general matters to consider include, but are not limited to, not overstaying the period of authorized stay (such as the expiration date as endorsed on the I-94 departure/arrival record for non-LPR); not accepting employment in the U.S. without first seeking proper immigration authorization; not perpetrating, committing or attempting to commit visa or immigration fraud.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Improvements in I-601 Waivers May Be Soon: Standards for Extreme Hardships, Concurrent Filings With I-130 Alien Relative Immigrant Petition, Adjudication, Processing Time!

On June 10, 2010, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman has made formal recommendations to the USCIS to enhance its efficiency in processing applications for I-601 waivers of inadmissibility. USCIS Ombudsman is an independent agency of the Homeland Security to assist individuals and employers in resolving, and identifying areas of, problems with the USCIS; and it also proposes changes to USCIS to mitigate identified problems. The USCIS Ombudsman reports directly to the Homeland Security.

Foreign nationals or non-U.S. citizens (including green card holders) with certain histories may need I-601 and/or other waivers, etc to be allowed to enter, remain or return to the U.S. These certain histories include, but are not limited to: (a) the commission of certain crime, or even possible commission of misrepresentation/fraud to obtain or attempt to obtain immigration benefits in or to the U.S.; (b) certain medical conditions; (c) certain period(s) of illegal presence in the U.S.; (d) abandonment (intentional/unintentional) of green card; and/or (e) certain removal/deportation experience with the U.S. immigration law.

For example, many non-U.S.-citizens and their U.S. citizen families, often times, encountered harrowing experiences when they learned, for the first time, that the non-U.S.-citizen family members are prohibited for a proscribed period (such as 3 years, 5 years, or 10 years) from entering or re-entering the U.S.; or are being removed/deported, or charged with removal/deportation, from the U.S. To the surprise of many, this may be so even if the non-U.S.-citizen has U.S. citizen spouse/child(ren), grew up in the U.S., and/or even has a green card.

For foreign nationals or non-U.S.-citizens who are already stranded abroad as a result of the time bar, the process and wait-time for applying for a waiver, such as an I-601 extreme hardship waiver (I-601 waiver), are complex, lengthy and extremely stressful to both the non-citizens, and their aggrieved family members in the U.S. This is because the adjudication and grant of a waiver such as an I-601 waiver are inherently highly discretionary; immigration regulations have not defined the criteria of “extreme hardship” for I-601 waiver, and therefore, there are inconsistencies and lack of uniformity on the standards that would sufficiently constitute “extreme hardships” as well as the best materials to provide; and the wait-time for an I-601 waiver immigration adjudication office varies widely, from 6 months to 1 year. Certain adjudication offices can take several years to adjudicate an I-601 waiver while an extremely small number of adjudication offices may only take several days to several weeks.

As a result, family separation is often lengthy and uncertain, and for the unfortunate ones, permanent.

In addition, foreign nationals who are still in the U.S., and aware of their need for I-601 waiver applications, are often times deterred from utilizing the I-601 process by going abroad, where required and depending on the circumstances, to seek the I-601 waiver remedy due to the highly uncertain outcome of the I-601 adjudication process or its excessive wait time. These foreign nationals are faced with the choices of either sacrificing the opportunity in remedying/improving their immigration status/compliance so that they could stay close to their family members in the U.S., or embarking on a risky journey of I-601 process which may result in long-term separation from their families in the U.S.

The USCIS Ombudsman has made several important recommendations to the USCIS Director to change, improve or enhance its adjudication and handling of applications for I-601 waivers such as:

1. Implementing an avenue for concurrently filing of I-130 Petition for Alien Relatives together with the I-601 waiver applications. Currently, where an I-130 petition is required, a foreign national must wait for the I-130 petition to be adjudicated before filing an I-601 waiver application, where required, thereby, unnecessarily increases the wait time for foreign nationals and their U.S. families.

2. Centralizing the USCIS processing of all I-601 waiver applications to achieve faster and more standardized adjudication.

3. Developing a centralized case management system to allow for accurate and centralized tracking of processing time and individual case status. Currently, the case status for an I-601 waiver application, filed at the U.S. Consulate, cannot be tracked using the USCIS online case status, unlike other immigration cases. (USCIS online case status service is available for I-601 waiver cases that are eligible for filing and are filed within the U.S.)

4. Providing clear filing instructions and guidelines to customers on the procedures for a request for expedited processing of an I-601 waiver application. At present, there are no instructions on what must be submitted for such a request for expedited processing.

5. Improving the interactions and coordination between the U.S. Department of State (DOS) and the USCIS to allow expeditious handling of I-601 waiver cases, for I-601 waivers filed at the U.S. Consulate.

6. Establishing a policy on advance file gatherings to allow the I-601 adjudication offices to expeditiously review and adjudicate I-601 waiver cases.

For further information on I-601 waiver applications/cases, please also read our article on “Permanent or long-term residency in the U.S. does not mean “permanent”, even for those with U.S. citizen spouse/child(ren), I-131 advance parole/re-entry permit, and/or green card!" at http://tiyalaw.blogspot.com/2010/04/permanent-or-long-term-residency-in-us.html

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Immigration Filing Fees are Expected to Rise by the End of 2010 or Beginning of 2011

On June 9, 2010, the U.S. Citizenship and Immigration Services (USCIS) announced that it has proposed a new fee rule to increase (weighted average of about 10%) the immigration filing fees as a result of projected revenue shortfall of approximately $200 million in Fiscal Year of 2010 (projected costs of $2.3 billions with a $2.1 billions in projected revenue). The proposed fee rule seeks to establish new fees for certain procedures or cases (such as immigrant investor visas); and an increase in filing fees for many types of immigration filings such as green card cases, applications for employment authorization document, applications for renewal/replacement of green card, temporary work visas. There is no proposed filing fee increase for naturalization or U.S. citizenship applications.

Applicants who are unable to afford the USCIS filing fees may submit an “inability to pay” request to the USCIS to waive the filing fee requirement(s). The USCIS grants fee waiver on a case-by-case basis after considering the totality of the circumstances presented.

The proposed fee increase is important to the eventual continuous, efficient and smooth functioning of the USCIS because over 90% of its budget is derived from filing fees from immigration filings and cases.

The proposed fee rule has been formerly published at the Federal Register today (June 11, 2010) for 45 days, and a final rule is expected to be published at the end of this year.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Green Cards: Improving Processing Time & Strategies

Choosing the correct and most suitable immigration classification and category when initiating and applying for green card status in and to the U.S. is extremely important. Depending on the type and/or classification of the green card, the wait time to obtain green card status varies tremendously, and the difference can be several months, to several years or even decades.

Immigrating to the U.S. via sponsorships through certain skill sets are effective ways to legally and permanently live and work in the U.S., or gain legal permanent residency status in the U.S.

The green card cases, based on skill sets or employable skills, in the U.S. fall under several preference categories. Some green card cases require employer sponsorships and some do not.

Some of the categories include, but are not limited to, green card employment-based preference 1 category (“EB-1”), employment-based preference 2 category (“EB-2”), and employment-based preference 3 category (“EB-3”). Choosing the most effective employment-based green card preference category is important to the foreign nationals for many reasons. Many EB-1 and EB-2 green card cases can be self-petitions, and this means, they do not require employer-sponsorships. For foreign nationals who have any green card cases (whether or not based on employment) that have been pending for too long, right now will be a good time to review various self-petition green card options. The differences in the various EB categories include, but are not limited to:

1. Many employment-based green card cases require sponsorships by employers. Other employment-based green card cases do not require the sponsorships of any specific employers, and can be self-petitions or self-sponsorships by the foreign national themselves.

a) For example, an EB-3 green card case requires the sponsorship by an employer.

b) On the other hand, an EB-2 national interest waiver green card case that is based on the foreign national’s contribution to the industry does not require the sponsorship by an employer.

c) An EB-1 extraordinary ability green card case is a self-petition immigration case, and does not require the sponsorship by an employer. Certain EB-1 green card cases require the sponsorship by an employer.

2. The wait time for green card cases for the various employment-based preference categories or cases can vary widely, ranging from several weeks or several months, to almost 9 years, because their wait time are tied to the employment-based preference category and the foreign national beneficiary’s country of birth (not nationality).

a) For example, the wait time to receive a green card based on an EB-1 case is tremendously shorter (several months or weeks) than an EB-3 case (many years) because immigrant visa numbers are more readily available for an EB-1 than an EB-3 case. Also, the wait time for an EB-2 national interest waiver case is tremendously shorter (several months or weeks) for, not all, but many countries.

b) For example, under an EB-2 case based on PERM, it takes substantially longer for a foreign national who was born in India or China to receive his/her green card (several years) than a foreign national who was born in other countries.

c) However, if a foreign national who was born in India or China is eligible and is applying for an EB-1 green card case, the wait time will be tremendously shortened.

d) Other than a bona fide marriage to a U.S. citizen, having relatives to provide immigration sponsorships to foreign nationals are by no means good solutions. Certain family-based green card sponsorships could take decades to come through.

For more information on the current immigrant visa number availability, please visit the immigrant visa bulletin at the website of the U.S. Department of States at

http://travel.state.gov/visa/bulletin/bulletin_1360.html

3. Moreover, the green card processing time at the various government agencies changes from time to time, depending on diverse factors such as their immigration case load, number of green card applicants in a given period, new law and/or policies.

a) The processing time for the various employment-based green card categories can retrogress (take much longer than the government’s previously estimated processing time).

b) For example, the processing time for many EB-3 green card cases retrogressed from a processing time of about 8.5 years in April 2009, to a sudden halt (no processing) for the month of May 2009 when immigrant visa numbers became unavailable for May 2009 because the U.S. Citizenship and Immigration Services (“USCIS”) cannot adjudicate green card adjustment of status cases without the available immigrant visa numbers.

e) For more information on the immigrant visa number availability (especially for April and May 2009), please visit the immigrant visa bulletin at the website of U.S. Department of States at

http://travel.state.gov/visa/bulletin/bulletin_1360.html

4. Some foreign nationals are deterred and discouraged by the dampening economy from, or their dim view in securing U.S. employment, and/or immigration or green card sponsorships.

a) For foreign nationals who do not have or wish to secure immigration sponsorships by U.S. employers, being able to apply for employment-based green card by themselves without any specific employers (i.e. self petitions or self sponsorships) can make a huge difference in their lives.
For example, the differences of either falling into illegal immigration status in the U.S.; not coming or immigrating to the U.S. or having to leave the U.S. (most often, after years of being in the U.S. with established social circles and families here); or the privileges and opportunities to live and anywhere in the U.S. with U.S. permanent residency status, and eventually, the opportunity to apply for U.S. citizenships.

In summary, choosing the most effective category of green card cases means the difference of waiting decades for your green card, to several months or weeks. Having a green card much sooner also means having the opportunities to choose to live and work anywhere in the U.S., and eventually, to apply to be U.S. citizens.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

ICE Arrests: Targeting Immigration Fugitives and Foreign Nationals Arrested or Convicted of Certain Crime (Foreign Nationals & Green Card Holders Take Note!)

Foreign Nationals or non-U.S. citizens (including green card holders) with criminal histories, removal/deportation orders, immigration hearings or notice to appear at immigration hearings should have their immigration options thoroughly analyzed and represented.

From May 10 to May 4 of 2010, and from May 24 to 28 of 2010, the local U.S. Immigration and Customs Enforcement (ICE) fugitive operations teams (FOT) arrested 72 foreign nationals (65 men and 7 women) in Chicago. FOT is one of the divisions of the U.S. Department of Homeland Security’s broader strategy to heighten and implement its strategies to effectively identify and remove dangerous criminal foreign nationals from the U.S.

This May 2010 FOT operations targeted immigration fugitives and criminal foreign nationals because the top priority for ICE is to enhance public safety. These arrestees originated from various countries such as China, Columbia, South Korea, Mexico, Peru, Jamaica, Israel, India, Honduras, Ecuador, Czech Republic, El Salvador, Lithuania, Macedonia and Columbia.

Immigration fugitives include foreign nationals who have failed to appear for immigration hearings, or who have absconded after being ordered by an immigration judge to leave or be removed from the U.S. Criminal aliens include non-citizens who have been convicted of or arrested for certain crimes which include, but are not limited to, drug possession, drunken driving, domestic battery, theft, burglary or larceny.

Last year, FOT made over 35,000 arrests nationwide. Over 31,000 or 81% of those arrests involved immigration fugitives and foreign nationals with prior criminal convictions/histories.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent companies, and individuals and their families in U.S. immigration law such as green card, work visa and waiver matters. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Rising Demand for Workforce, Foreign Nationals or Otherwise, As Oil Spill and Environmental Calamities Worsen in the Gulf of Mexico?

With the spread of environmental calamities as a result of the severe and continuous oil leak caused by BP’s Deepwater Horizon oil rig explosion on April 20, 2010 in the Gulf of Mexico of the United States, international cooperation and efforts from various experts which include, but are not limited to the scientific, environmental, and natural oil/gas communities are more sacrosanct than ever.

This oil spill disaster is expected to be the worst environmental catastrophe in the U.S. Patches of the oil spill have already washed up on the coastal parts of three U.S. states (Louisiana, Alabama and Mississippi). Before that, the oil spill has also begun to eliminate or severely dampen the livelihood of fishermen and other workforce relying on the coastal and marine economy. Even the U.S. tertiary sectors relying on the coastal or marine economy are severely affected. This oil spill catastrophe could not come at a worse time given that the U.S. and many international communities are still trying to ride out of the economic downtown. At the same time, we will see a shift of demand for other types of workforce, and the creation or increase of other types of jobs and industries.

As a result of this environmental and economical catastrophe caused by the oil spill in the Gulf of Mexico, we expect to see a rising demand for wide-ranging and diverse specialized professionals in the U.S. to combat the increasingly evident and potential astronomical environmental disasters. These professionals, whether they are U.S. residents or foreign nationals, may range from scientists, engineers, environmentalists, researchers, environmental and other economists, biologists, oceanographic professionals, atmospheric professionals, medical/legal/financial/insurance/business experts, geologists, and/or alternative/clean/other energy experts.

Qualified and eligible foreign national experts, professionals or technical personnel are, therefore, likely to see increasing opportunities to fill the needs in the U.S. to resolve the oil spill and related environmental, industrial and economic catastrophe.

There are many types of immigration options which would allow such qualified workforce to enter or remain in the U.S. to help resolve the oil spill and pertinent matters.

A. For nonimmigrant or temporary work visas, the immigration options include, but are not limited to:
1. H-1B specialty occupation professionals work visas.
2. H-2 seasonal or temporary worker work visas.
3. E treaty trader/investor work visas.
4. TN NAFTA country work visas.
5. L-1 intra-company transferee work visas.
6. O-1 extraordinary ability work visas.

B. For immigrant or permanent lawful residence status (commonly, known as the green card), the immigration options include, but are not limited to:

1. Employment-Based (EB-1) extraordinary ability green card status.
2. EB-1 multinational managers/executives green card status.
3. EB-2 outstanding researcher/professor green card status.
4. EB-2 national interest waiver green card status.
5. EB-2 exceptional ability green card status.

C. Depending on the foreign nationals’ credentials and eligibility, and the types of immigration option being sought, the foreign nationals may or may not require any existing or new employer-sponsors.

This would be an opportune time to call for concerted efforts from all qualified professionals and workforce, whether they are in the U.S. or abroad, foreign nationals or otherwise, to explore their expertise and opportunities to help overcome the environmental and economical problems caused by the oil spill in the Gulf of Mexico. Ultimately, the adverse and wide-spreading environmental and economical impact from this oil spill is inherently non-adherence to national borders, and is therefore, an international concern as opposed to just a U.S. crisis.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Permanent or long-term residency in the U.S. does not mean “permanent”, even for those with U.S. citizen spouse/child(ren), I-131 advance parole/re-entry permit, and/or green card!

Prior to traveling internationally or submitting United States (U.S.) immigration applications, foreign nationals or non-U.S.-citizens (including green card holders) with certain histories should have their immigration backgrounds analyzed and evaluated thoroughly, and/or their immigration applications properly prepared.

These certain histories include, but are not limited to: (a) the commission of certain crime, or even possible commission of misrepresentation/fraud to obtain or attempt to obtain immigration benefits in or to the U.S.; (b) certain medical conditions; (c) certain period(s) of illegal presence in the U.S.; (d) abandonment (intentional/unintentional); and/or (e) certain removal/deportation experience with the U.S. immigration law.

For example, many non-U.S.-citizens and their U.S. citizen families, often times, encountered harrowing experiences when they learned, for the first time, that the non-U.S.-citizen family members are prohibited for a proscribed period (such as 3 years, 5 years, or 10 years) from entering or re-entering the U.S.; or are being removed/deported, or charged with removal/deportation, from the U.S. To the surprise of many, this may be so even if the non-U.S.-citizen has U.S. citizen spouse/child(ren), grew up in the U.S., and/or even has a green card.

For foreign nationals or non-U.S.-citizens who are already stranded abroad as a result of the time bar, the process and wait-time for applying for a waiver, such as an I-601 extreme hardship waiver (I-601 waiver), are complex, lengthy and extremely stressful to both the non-citizens, and their aggrieved family members in the U.S. This is because the adjudication and grant of a waiver such as an I-601 waiver are inherently highly discretionary; and the wait-time for an I-601 waiver immigration adjudication office varies widely, from 6 months to 1 year. Certain adjudication offices can take several years to adjudicate an I-601 waiver while an extremely small number of adjudication offices may only take several days to several weeks.

As a result, family separation is often lengthy and uncertain, and for the unfortunate ones, permanent.

A. At present, for example, certain foreign nationals (non-green card holders) who have been illegally present in the U.S. for more than 180 days or one year; and have either departed the U.S. or have previously departed and re-entered the U.S. without the appropriate waiver, within the proscribed/prohibited period of time bar of either 3 years or 10 years, respectively, will need an I-601 extreme hardship waiver (“I-601 waiver”) if they are to be allowed to return to or remain in the U.S.

This 3-year/10-year bar also applies to foreign nationals with pending green card cases who traveled or are traveling on I-131 advance paroles, if they have been illegally present in the U.S. for more than 180 days or one year, respectively.

B. For example, under certain circumstances, to the surprise of many, even green card holders or lawful permanent residents (even for those who have lived in the U.S. for most of their lives), may experience the following:

(i) Under certain circumstances, green card holders may need an I-601 waiver if they are to be allowed to remain in or return to the U.S.; or
(ii) Under certain circumstances, green card holders may be considered to have abandoned their green card status (intentionally or even unintentionally) which include, but are not limited to, prolonged or frequent absences from the U.S., or working abroad. Having a re-entry permit will not necessarily prevent a finding of abandonment of green card status; or
(iii) Moreover, revocation of green card status may occur such as if there is a finding of fraud, misrepresentation or initial ineligibility.

C. For example, foreign nationals or non-U.S.-citizens (including green card holders) with certain criminal histories may need an I-601 waiver if they are to be allowed to enter, return to or remain in the U.S.

D. For instance, certain foreign nationals who have removal/deportation orders may need an I-212 waiver if they are to be allowed to return to the U.S.

E. Similarly, some foreign nationals or non-U.S.-citizens (including green card holders) with U.S. immigration applications previously denied, or even approved, under limited situations may, years later, discover that they need an I-601 waiver.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law. We represent clients within the U.S. and abroad.

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Stranded in the U.S. due to the Icelandic Volcano Eruption? If so, please remember to apply for extension of your stay in the U.S.

The United States has granted special temporary relief to foreign nationals whose status in the U.S. are about to expire and who are stranded here because of the European airport closures due to the Icelandic Volcano Eruption.
Applicable foreign nationals who entered the U.S. under the visa waiver program (VWP) should contact either the U.S. Customs and Border Patrol office at the airport, or the local U.S. Citizenship and Immigration Services (USCIS) office.

Applicable foreign nationals who entered the U.S. with a visa should file a request for extension of status with the regional USCIS office.

In order to comply with the U.S. immigration law and not to complicate or jeopardize future U.S. immigration benefits, foreign nationals who entered under the VWP or visas should be vigilant in not exceeding their period of authorized stay in the U.S.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

Temporary Protection Status (TPS) for Haiti Starting on January 21, 2010!

The U.S. Department of Homeland Security (DHS) will be publishing the Federal Register notice announcing the designation of Haiti for temporary protected status (TPS) on 1/21/2010, allowing eligible individuals from Haiti to apply for TPS starting 01/21/2010.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767; 703-772-8224
www.tiyaimmigration.com ; www.tiyalaw.blogspot.com ; www.immigrationresource.net

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship

United States Immigration Relief Measures for Individuals from Haiti

On January 18, 2010, the U.S. Department of Homeland Security's (DHS) U.S. Citizenship and Immigration Services (USCIS) issued DHS' immigration relief measures for individuals from Haiti. DHS will continue to monitor the situations in Haiti to determine if additional actions will be required. As of January 18, 2010, the available immigration relief measures include, but are not limited to, the following:

1. Favorable adjudication of applications for extension or change of status. Individuals who previously held valid nonimmigrant status may also apply.
2. Automatic extension of advance paroles until March 12, 2010 for individuals already in Haiti whose parole documents expire on or after January 12, 2010.
3. Individuals already paroled into the U.S. may apply to extend their parole documents.
4. Stay of removal applies on case-by-case basis.
5. Expedited processing of certain pending and/new immigration applications or petitions.
6. Individuals from Haiti who are currently in the U.S. in F-1 student status who may no longer afford their school fees may be able to apply for Employment Authorization.
7. Certain individuals from Haiti currently in the U.S. may apply for employment authorization.
8. Temporary protection status (TPS) applies to eligible individuals from Haiti.

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 202-506-9767; 703-772-8224

www.tiyaimmigration.com ; www.tiyalaw.blogspot.com ; www.immigrationresource.net

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship

Temporary Protection Status (Temporary Immigration Status) for Haiti

In response to the January 12, 2010 earthquake tragedy in Haiti, the U.S. Department of Homeland Security (DHS) Secretary, Janet Napolitano, announced on January 15, 2010 that the United States will be granting Temporary Protection Status (TPS) to Haiti for 18 months. TPS is a temporary immigration status (for 18 months, in this case) to qualified foreign nationals for a designated country.

To be eligible for this TPS, the applicant must meet criteria such as:
1. The applicant must either be a national of Haiti, or does not have any nationality but whose last habitual residence was Haiti.
2. The applicant must have been continuously present in the United States (U.S.) since January 12, 2010 and the date when TPS can be submitted to the immigration.

People who are not eligible to apply for this TPS include:
1. Those arriving in the U.S. after January 12, 2010.
2. Those convicted of a felony, or two or more misdemeanors.
3. Those subject to several other criminal and security-related bars to asylum, including participating in the persecution of another individual or engaging in or inciting terrorist activity.

These TPS applications can only be submitted to the government in the time frame below:
1. When the federal government publishes the TPS eligibility in the Federal Register. A Federal Register is an official journal of the federal government of the United States.
2. Once published in the Federal Register, the TPS application must be submitted to the government within 180 days.

For those with existing or future immigration applications, not related to the TPS:
1. A TPS application does not affect an existing or other immigration case which was previously submitted to the immigration.
2. Similarly, a TPS applicant who has already applied for TPS but who has another form of immigration relief such as marriage- or employment-based sponsorship may continue to apply for the non-TPS immigration benefit, if eligible.

By virtue of a TPS application, an applicant will also be eligible to apply for employment authorization to work in the U.S. A TPS applicant will also be eligible to apply for advance parole, a type of travel document for international travel. However, a foreign national planning to travel internationally even with an advance parole should consult an experienced immigration attorney prior to an international travel because an advance parole document does not serve as a guarantee for re-entry into the U.S. Advance parole is merely a document for the traveler to apply for permission to re-enter the U.S., and certain foreign nationals may not be allowed re-entry into the U.S. after their international travels.

The standard documents required to apply for TPS will include proof of nationality, or for those without any nationality, last habitual residence for Haiti; and continuous presence in the U.S. since January 12, 2010. Secondary evidence may be used, where applicable. The final procedures for filing TPS applications will be announced in the Federal Register.

Separate government application filing fees will apply for a TPS application, employment authorization document and advance parole. Under certain circumstances, the filing fee(s) may be waived.

Most non-United States (U.S.) citizens (even green card holders) who are in the U.S. are required by law to notify DHS of any change of address within 10 days after moving to a new address, by filing a Form AR-11, Change of Address. The form AR-11 may be filed electronically on DHS' website at https://egov.uscis.gov/crisgwi/go?action=coa . Failure to comply with the U.S. change of requirement is a misdemeanor crime, punishable by fine (up to $200) and/or imprisonment (up to 30 days), and may also subject the non-U.S. citizen to deportation.

An immigration news article by Aik Wan Kok of Tiya PLC.
www.tiyaimmigration.com ; www.tiyalaw.blogspot.com ; www.immigrationresource.net

All Rights Reserved.
This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship

Temporary Suspension of Removal of Foreign Nationals to Haiti, U.S. Immigration Response to Haiti's Earthquake Tragedy

On January 13, 2010, in response to the devastation caused by
the recent earthquake in Haiti, Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton halted all removals to Haiti for the time being.

2010 H-1B Visa Quota Has Been Reached!

On December 21, 2009, the U.S. Citizenship and Immigration Services (USCIS) announced that it has received sufficient new H-1B specialty occupation worker petitions to reach the statutory cap for the fiscal year 2010 (FY2010). USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.