Category Archives: USCIS Processing

B-Visa Status — Special Circumstances

Under internal guidance and in cooperation with visa policy of the U.S. State Department, USCIS is to uniformly and consistently process Form I-539 for changes to and extensions of B-2 status for cohabitating non-immigrant partners and other household members of principal non-immigrants.

In some circumstances, elderly parents, cohabitating non-immigrant partners, and other household members of principal non-immigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal non-immigrant is an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

There are also circumstances when it may be inconvenient or impossible for spouses or children of principal non-immigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal non-immigrant visa holder who is in the United States in another status (H-1B, F-1, etc.). Department of State guidance provides for issuance of B-2 visas to these household members.

Consular officers are to annotate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from USCIS for the duration of the principal alien’s non-immigrant status.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the non-immigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal non-immigrant lacks non-immigrant intent is a negative factor in the exercise of USCIS’ discretion.

USCIS Implements Customer Identity Verification at its Field Offices

Beginning September 9, 2013, USCIS began employing a new verification tool called Customer Identity Verification (CIV) in its field offices. Customers will now submit biometric data, specifically fingerprints and photographs, when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit.

CIV will enhance the integrity of the immigration system and combat identity fraud by allowing USCIS to biometrically verify a customer’s identity. Having resolved a technical issue that delayed the original launch, the tool will now be phased in between September 9 and October 21, 2013 to customers attending an interview or being issued evidence of an immigration benefit.

How It Works:

After a customer arrives at a field office, clears security, and is called to the counter, two fingerprints will electronically be scanned and a picture taken to verify their identity. The process takes just a few minutes and applies only to customers who have an interview or receive evidence of an immigration benefit. People who come to the USCIS office for InfoPass appointments, or to accompany a customer, will not undergo this process.

Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit the nearest Application Support Center (ASC) to provide biometric data. USCIS uses this data to help determine eligibility for requested benefits. This requirement, along with providing a government-issued document for examination, will not change.

How It Helps:

CIV connects instantly to the United States Visitor and Immigrant Status Indicator Technology’s (US-VISIT’s) Secondary Inspections Tool (SIT). SIT is a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security.

Same-Sex Marriages and “DOMA”

defRecently, the U.S. Supreme Court has found section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Effective immediately, U.S. government agencies will adjudicate applications for federal benefits that are based on a same-sex marriage in the same way that we adjudicate applications for opposite gender spouses. This means that the same sex spouse will be eligible for the same or derivative benefits. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.

If your marriage is valid in the jurisdiction (U.S. state or foreign country) where it took place, it is valid for purposes of obtaining federal government benefits. At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.

For most federal benefits involving children or step-children, the marriage must have taken place before the child in question turns or turned 18.

If cases were previously submitted and denied by the government, solely based on reasons relating to “DOMA”, the government will now usually reopen those petitions or applications. The government will usually take steps to reconsider its prior adverse decision, as well as reopen associated applications to the extent they were also denied as a result of the primary denial (Example: when Form I-130 was denied, and subsequently Form I-485 is denied, all related cases will be reopened).

Certain USCIS Fees now payable via “ELIS”-system.

ELIS_logoThe newly instituted “Immigrant Fee” ($165) and the I-539 fee ($290) can now be payed online, using USCIS’  “ELIS” case management system.  Please note that new U.S.-bound immigrants must pay the new Immigrant Fee BEFORE departing their home country, before arrival in the United States.

The USCIS Electronic Immigration System (“ELIS”) is a streamlined online account-based system that enhances customer service and the quality of our processes. Through USCIS ELIS, customers can view their benefit requests, receive electronic notification of decisions, and receive real-time case status updates.

USCIS ELIS allows applicants to:

  • Conveniently and securely set-up and manage their accounts;
  • Electronically submit applications and supporting documents;
  • Receive and respond to notices and decisions electronically;
  • Make payments online; and
  • Access real-time information about the status of their cases.

USCIS seeing benefits from its “Entrepreneurs in Residence Initiative”

In just over one year, U.S. Citizenship and Immigration Services’ (USCIS) innovative Entrepreneurs in Residence (EIR) initiative has produced real benefits that will strengthen agency policies and practices relating to job-creating immigrant entrepreneurs who help advance American economic growth.

“Our EIR initiative has had one overarching goal – to ensure that we capture the full potential of current immigration laws to attract and retain startup enterprises that promote innovation and create jobs in America,” said Director Mayorkas. “In the 15 months since we started the initiative, we have seen positive results based on the combined talent of private sector experts and our own internal experts and we are eager to expand this concept to other industries we serve.”

Launched at a February 2012 summit in Silicon Valley, the EIR initiative brought together startup experts and USCIS immigration experts to work collaboratively to streamline pathways fora range of existing visa categories often used by entrepreneurs. Three aims were key to the overall initiative: producing clear public materials to help entrepreneurs understand relevant visa categories; equipping USCIS staff with
the right tools to adjudicate cases in today’s complex business environment; and streamlining USCIS policies to better reflect the realities faced by foreign entrepreneurs and startup businesses. USCIS released a summary of the EIR team’s work. Some of the highlights over the past year
include:

  • Nearly 30,000 visits to Entrepreneur Pathways, which provides entrepreneurs seeking to start a
    business in the United States an intuitive way to navigate the immigration process;
  • Approximately 500 participants across the United States in USCIS’s entrepreneur-focused
    engagements;
  • More than 400 USCIS employment-based immigration officers trained on startup businesses and
    the environment for early-stage innovation; and
  • More than 100 USCIS officers receiving additional specialized training to handle entrepreneur and
    startup cases.

Don’t gamble, if you’re not prepared to win!

Every year, in the course of my professional practice as an immigration lawyer, I meet or know of at least 2-3 people who win the Greencard by virtue of the annual “Diversity Visa”-Lottery.    While this in itself may not be that unusual, I AM, however, astounded time and time again when I meet someone who either returned the Greencard after receiving it, or, in the alternative has no intention whatsoever to relocate to the United States.

On a near daily basis, I meet foreign nationals who would literally give ANYTHING to obtain a Greencard.  These people will often spend years of their lives,  thousands of dollars of their money, and many sleepless nights doing whatever possible in their power to get to that coveted lawful permanent resident card.

With this knowledge, I am completely dumb-founded when someone who actually won the Greencard-Lottery not only was notified as a “winner”, but also took the affirmative steps necessary to complete the residence process and take possession of the Greencard and then actually either voluntarily turn in the card, or never actually move to the U.S., because it does not fit into their life-plan.

I wonder why these types of individuals actually participate in the Lottery, when they know full-well, that participating in the lottery brings with it the chance of a “win”, and that they could likely receive 1 of an annually limited number of available Greencards…   Why play this kind of lottery when you are not prepared for (or willing to accept) the consequences of a possible win?

People should approach the Greencard Lottery in the same way, as they otherwise would when they make an offer to purchase something.   When the other side in an agreement accepts the offer, as it was made, then a binding legal agreement (i.e. “contract”) exists.   Once this contract exists, there will be legal consequences, whether one follows through on the transaction or not.

While I often counsel eligible persons to participate in the annual Greencard Lottery, I also advise of the obligations that come with the participation in the event of a winning-notification.   Persons contemplating participating in the lottery should not do so lightly and without sufficient deliberation. Keep in mind that when you play, you could potentially win.  If you win, you should be able to follow through and make the required relocation to the United States.  The Greencard requires by law that the possessor relocate his/her worldwide residence from abroad INTO the United States, and be physically present in the United States at least 6 months out of the year (some exceptions may apply).

If you have any specific questions or concerns about the Lottery, or the requirements of a lawful resident in the United States, please feel free to contact me.

Clarifications on the Scope of “Investment” in the E-2 visa

Time and time again, I receive various queries regarding the “investment” component of the E-2 visa.   In the day and age of readily available information-overload (thanks, Google), much has been written over the years regarding the E-2 visa and its requirements, particularly about “how much” to invest in order to maximize chances of receiving the E-2 visa (or status).

While there are many different figures cited in various blogs, newsgroups, and other sites,  ranging from $25,000 to $2.5 million, there is NO OFFICIAL MINIMUM which the U.S. government dictates MUST be invested in the E-2 visa context.

In 10+ years of my immigration law practice, I can say, based on actual E-2 cases, one can say that average investments in approved cases range between $50,000 and $250,000, ordinarily.

However, it is important to stress that the appropriate level of investment varies from case to case and is reviewed by the U.S. government as such, on a “case-by-case” basis.   While an investment of $35,000, for example, could be approved in one case, it may very well be denied in another.   The same holds true for an investment of any other amount.

As prospective investor, in order to maximize one’s chances of successful E-2 visa issuance, one must remain mindful of several factors, which will be important in the government’s decision-making process:

(1) What is needed investment-wise, to get YOUR U.S. business up and running properly.
(2) the amount invested is the “correct” and adequate amount, given your unique situation.
(3) the amount invested is “sufficient” to safeguard your ongoing commitment to the success of the enterprise.
(4) the investment is potentially “subject to partial or total loss”, if business fortunes turn bad. (no financial safeguard!)
(5) the investment funds cannot be withdrawn at will, once the visa is issued, but must remain in the enterprise.
(6) based on the investment, the U.S. business enterprise will likely be profitable within the first 5 years of operation.

There are, of course, additional E-2 visa requirements, not directly relating to the investment.

The MORE you accomplish before the visa is applied for, the HIGHER the likelihood of the visa being granted.  In other words, the more of the start-up commitment and risk you take upon yourself before applying, the better your chances.

USCIS Rolling out User-Friendlier Forms.

USCIS is working hard to make its forms better and more user-friendly, rolling out a series of revised forms which will be in 2-column format and feature a large two-dimensional barcode on the bottom of each page, which will change dynamically, as information is entered or changed.
newUSCISbarcodedforms
Easy-to-Use Formats:

We are publishing many of our forms in a 2-column, Adobe fillable format. When completed electronically, this format restricts incorrect entries and provides informational pop-up boxes to assist customers.

User-Friendly Look and Feel:

We have improved several of our naturalization forms to include clear and comprehensive instructions in plain language.

Centralized Processing:

We will continue to centralize filing locations at the USCIS Lockbox facilities. Our Lockbox facilities provide fast, secure and standard intake services for over 5 million forms filed annually. Beginning in February 2013, customers filing Form N-470, Application to Preserve Residence for Naturalization Purposes, will mail them to the Dallas Lockbox facility.

New Data Collection Technologies:

Beginning with Form I-90, Application to Replace Permanent Resident Card, we will publish our high-volume forms with 2D barcode technology. When you complete these forms using a computer, the barcode at the bottom of the page will store the data entered on the form. We will be able to scan the information from the barcode and upload it directly to USCIS systems, allowing us to improve data quality and operational efficiency.

USCIS to begin collecting new Immigrant Visa Fee on Feb. 1.

Starting February 1, 2013, USCIS will begin collecting a new fee of $165 from foreign nationals arriving in the United States as new immigrants.

The agency said it has worked closely with the Department of State (DOS) to implement the new fee, which will allow USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa-holders receive their visa packages from DOS. This includes staff handling and the cost of producing and delivering the permanent resident card.  Applicants will pay online through the USCIS website after they receive their visa packages from DOS and before they leave for the United States. DOS will provide applicants with information on how to submit the payment when they attend their consular interviews. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.

USCIS processes approximately 36,000 immigrant visa packages each month. Adoption cases are generally exempt from the new fee.

Revised FL-DMV Procedures for “Deferred Action” Applicants.

If DHS has granted deferred action and a work permit has been applied for or approved, these individuals are eligible for issuance. Other documents required would be a valid government-issued document (unless the customer has been issued with the Department since January 1, 2010), two (2) proofs of residential address and proof of social security number (if one has been issued), along with the deferred action letter from DHS.

Furthermore, if the customer is a youth and is seeking a first-time issuance, F.S. 322.095 requires completion of the traffic law substance abuse (TLSA) course or the satisfactorily completed Department of Education driver’s education course.