Our Successes Last Month  

Finally, the Board of Immigration Appeals has come up with a solution for those who entered as K1 fiancées and then had their marriages break up.  I have had these situations myself where the spouse then was not eligible to adjust status based on a marriage to anyone else, even after having had a conditional permanent residency.  This law made no sense as it imposed a harsh reality of removal for those whose marriages didn't last unless they could be eligible for Cancellation of Removal or Special Immigrant petition which often, more likely than not, the spouse was not qualified for.

Matter of Sesay, Int. Dec. 3707, 25 I&N Dec. 431 (BIA 2011) -

(1). Under section 245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (2006), a fiancé(e) visa holder can only adjust status based on the marriage to the fiancé(e) petitioner. Matter of Zampetis, 14 I&N Dec. 125 (Reg. Comm'r 1972), superseded.

(2) A fiancé(e) visa holder whose bona fide marriage to the fiancé(e) visa petitioner is more than 2 years old at the time the adjustment application is adjudicated is not subject to the provisions for conditional resident status under section 216 of the Act, 8 U.S.C. § 1186a (2006).

(3) A fiancé(e) visa holder satisfies the visa eligibility and visa availability requirements of section 245(a) of the Act on the date he or she is admitted to the United States as a K-1 nonimmigrant, provided that the fiancé(e) enters into a bona fide marriage with the fiancé(e) petitioner within 90 days.

(4) A fiancé(e) visa holder may be granted adjustment of status under sections 245(a) and (d) of the Act, even if the marriage to the fiancé(e) visa petitioner does not exist at the time that the adjustment application is adjudicated, if the applicant can demonstrate that he or she entered into bona fide a marriage within the 90-day period to the fiancé(e) visa petitioner.
 

You  certainly want to see an immigration attorney for help to ensure that you do this properly if you entered as a fiancée. Beach-Oswald immigration attorneys can help you navigate the process and file your papers correctly.

USCIS Continues to Accept FY 2012 H-1B Petitions  

WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1, 2011.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master's degree or higher cap exemption.

USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers and computer programmers, among others.

USCIS will provide regular updates on the processing of FY 2012 H-1B petitions. These updates and helpful filing information can be found at USCIS's website highlighting the H-1B program. Should USCIS receive the number of petitions needed to meet the cap, it will issue an update advising the public that the FY 2012 H-1B cap has been met as of a certain date, known as the "final receipt date."

The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may, on the final receipt date, randomly select the number of petitions that will be considered for final inclusion within the cap. The agency will reject petitions subject to the cap that are not selected, as well as those received after the final receipt date. Whether a petition is received by the final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked.

Cases for premium processing (faster processing of certain employment-based petitions and applications) of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

For more information about the H-1B Fiscal Year 1012 Cap Season, click here. For assistance with your H-1B Visa application, please consult with Beach-Oswald Immigration Attorneys located in Washington, DC.

Motions to Reopen Removal Cases OK Outside the U.S.

Court Protects Immigrants' Right To Reopen Cases From Outside the U.S.

Washington D.C. - A federal appellate court recently reversed a Board of Immigration Appeals' (BIA) decision (Reyes-Torres v. Holder) that would have prevented noncitizens from presenting new evidence in their removal cases - evidence that potentially could change the outcome - because they are outside the United States. As the Legal Action Center of the American Immigration Council and the National Immigration Project of the National Lawyers Guild argued in an amicus brief, Congress enacted laws that allow non-citizens to pursue their cases from outside the U.S.  The decision from the U.S. Court of Appeals for the Ninth Circuit is the latest in a series of decisions rejecting the government's position that immigration judges and the BIA lack jurisdiction over such cases.

Federal law gives non-citizens 90 days to file a "motion to reopen," a procedural mechanism for submitting new evidence after a removal order becomes final. But the BIA has long maintained that it cannot consider a motion to reopen if a foreign national is outside the United States. The court rejected the government's position, emphasizing that allowing the immigration courts to refuse to hear motions in these cases enables the Department of Homeland Security to unilaterally restrict the opportunity to seek reopening by deporting a person before the deadline for filing a motion to reopen.  As the court concluded, the government's position "completely eviscerate[s] the statutory right to reopen provided by Congress."

Five appellate courts have found that the bar to motions to reopen from outside the U.S. is unlawful.  It is past time for the government to withdraw this outdated regulation rather than proceed with costly litigation," said Beth Werlin of the American Immigration Council's Legal Action Center.

"This is a victory for those who care about a fair process to ensure that immigrants are not unlawfully separated from their families," said Trina Realmuto of the National Immigration Project, who argued this case on behalf of amici curiae.

The American Immigration Council's Legal Action Center and the National Immigration Project of the National Lawyers Guild, which filed a joint amicus brief in the case, applaud the Ninth Circuit's ruling. The Legal Action Center and National Immigration Project have coordinated litigation on this issue nationwide and call on the BIA to abandon its misguided regulation barring review of motions filed by noncitizens outside the United States.

UAFA (Uniting American Families Act) Reintroduced for Same-Sex Couples

From Out4Immigration:  

Legislation and Letter from Congress Increases Demand for Protection of Same-Sex Binational Couples, Families from Discriminatory Immigration Law

The Uniting American Families Act (UAFA) was reintroduced in the House and Senate this week by long-time equal rights advocates Rep. Jerrold Nadler (D-NY-8) and Sen. Patrick Leahy (D-VT). The legislation is backed by 98 co-sponsors in the House and 18 in the Senate, a record for the bill on reintroduction. It has been introduced in every session of Congress since 2000.

The bill would add three words to existing US immigration law - "or permanent partner" - wherever the word spouse appears, facilitating the need for LGBT Americans to obtain green cards for their partners while they wait for repeal of the Defense of Marriage Act (DOMA).

"Thousands of committed same-sex couples are needlessly suffering because of unequal treatment under our immigration laws, and this is an outrage," said Nadler. "Our Constitution guarantees that no class of people will be singled out for differential treatment - and LGBT Americans should not and must not be excluded from that guarantee."

Adding a one-two punch to UAFA's reintroduction is a letter from Rep. Zoe Lofgren (D-CA-16), the ranking Democrat on the House Subcommittee on Immigration Policy and Enforcement, calling on the Department of Homeland Security (DHS) and the Department of Justice to stop denying LGBT green card applications and stop separating LGBT binational families. The letter was signed by 48 House members and adds weight to a similar letter sent last week by Sen. John Kerry (D-MA) and 11 of his colleagues requesting the same immediate remedy to what Rep. Nadler has repeatedly called "gratuitous cruelty."

UAFA comes into the 112th Congress under a much different landscape than previous introductions of the bill. While Democrats no longer control the House and hold a slimmer majority in the Senate, support for same-sex binationals has grown since President Obama's directive on February 23 that the federal government stops defending Section 3 of DOMA on the basis that the law - which prohibits federal recognition of same-sex marriages - is unconstitutional.

No group is harder hit by DOMA than same-sex binational couples and their families, many who have been forced into exile or literally torn apart by immigration law that adheres to the DOMA decree that marriage is defined as "one man and one woman." As a result, these couples, regardless of legal marriages, civil unions or domestic partnerships are treated as "legal strangers".

Deportation cases targeting the foreign partner in these relationships have been winning temporary stays of late, as judges are deferring to the Obama directive that DOMA is unconstitutional. This caused a major uproar last month when the United States Citizen and Immigration Services (USCIS) stated it would hold all such cases in abeyance until DOMA's constitutionality was either formally upheld or overturned. Although USCIS reversed this decision within 36 hours, advocates for same-sex binationals.

April 25, 2011

Senate Dems To Obama: Stop Deporting DREAM Act Students  

Summer Internships Available  

Morton Promises to Investigate ICE Racial Profiling in Detroit  

Community activist Angela Reyes said ICE Director John Morton promised to do a case-by-case and systemic review of the agency's enforcement policies.

Ruben Torres, 45, a Detroit Public Schools engineer, also told of being stopped by an unmarked ICE vehicle as he attempted to get onto northbound Lodge on March 24. Torres said the agent was not wearing a uniform and was in an unmarked vehicle. He said the agent told him he was stopped because his license plate indicated he had an expired visa. Torres, a third-generation Mexican-American, said he didn't have a visa because he is an American-born citizen. "I pulled out my Social Security card," said Torres of Detroit. "He continued to ask me about my citizenship."  

Torres' frustration was echoed by Reyes, the executive director and founder of the Detroit Hispanic Development Corp. on Trumbull in Detroit. She said she takes her passport with her at all times in case she is stopped by ICE agents. "Even though my family's been here over 100 years, I'm afraid I'm going to be deported," Reyes said. "It's racial profiling."

Detroit News, Apr. 16, 2011.