California Immigration Lawyer Blog

There was recently an article in the Washington Post which indicated that USCIS' backlog was "virtually gone." I have noticed in my San Francisco law firm that most cases are being adjudicated in a timely manner, but there are many that are not. What can you do if your case is one that has been delayed? Here are my suggestions:

• Make an InfoPass appointment. If you have an adjustment of status application or naturalization application that is pending at a local office, make an InfoPass appointment and see what the USCIS officer can tell you. While you may not find out anything, it is important to begin building a record of inquiries if you should decide later to pursue a mandamus application or petition for hearing in federal court, as I will discuss below.
• Write a letter to USCIS. Again, you may learn nothing but it costs only $0.44 to send a letter so it is an inexpensive method by which you can try to determine why your case is being delayed.
• Call the USCIS customer service center number at 1-800-375-5283. Again, perhaps another waste of time, but InfoPass appointments and calls to the 1-800 customer service number are tracked by USCIS. It forces them to send out correspondence. Proof of making such inquiries will help you if you decide to file a case a mandamus or petition for hearing in federal court.
• Write to your Congressional representative. You can use the Congressional Representative website to find your representative. You will receive some kind of response as USCIS will respond to a member of Congress, if not to you.
• File a petition for hearing on naturalization on a naturalization application pursuant to 8 U.S.C. Section 1447(b). If you were interviewed at USCIS and your interview took place more than 180 days ago, you may file a petition for hearing on your naturalization application in federal court. While USCIS may have cleared up its backlog of background checks, I am still seeing cases delayed at USCIS where applicants have been interviewed over 120 days ago. Most of these cases tend to come out of the San Jose field office. There is not a justifiable reason for this delay that I can see.
• File a mandamus application in federal court pursuant to 28 U.S.C. Section 1361 A mandamus is an action to compel a federal agency to carry out a duty owed to the applicant. An example of when this would be used is if you file an adjustment application but USCIS never adjudicates it. It may be used in all sorts of contexts – adjustment, political asylum, visa petitions or naturalization applications if you have not been interviewed. You must allow a reasonable period of time to pass before filing a mandamus. A reasonable time is generally a year since the last action took place. It is a good idea to show that you have tried everything in your power to resolve the case such as inquiries, InfoPass appointments, etc.

Mandamus petitions and petitions for hearing on naturalization applications do work. I have been successful in many cases. If you wish to discuss your case with a San Francisco Bay Area immigration attorney, please feel free to contact me.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Mandamus , Petition for hearing on naturalization application

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Yesterday I went to a training for immigration attorneys in Sacramento, California. The jurisdiction of the USCIS Sacramento field office includes the cities of Vallejo and Benicia so I thought it might be useful to hear about any new local procedures. While I did not learn anything new about what is happening at Sacramento USCIS, I did learn about new procedures being applied to applicants applying for visas abroad.

It seems that applicants who have tattoos are being screened more carefully at their medical appointments. The belief is that an individual with a tattoo may be involved in gang activity which furthermore may lead to that individual engaging in substance abuse. In a published article included in conference materials at the American Immigration Lawyers Association’s (“AILA”) annual conference, immigration lawyers Fernando Rojas and Magda Montiel Davis, explain what is happening:

Panel physicians are asking applicants about the meaning of their tattoos and the medical personnel conducting the exam will take notes describing the tattoo. This interrogation could lead to further questions about the applicant’s possible gang affiliation and criminal history. Applicants with tattoos are also being questioned by the panel physician regarding their substance abuse history. Apparently, panel physicians are making the assumption that applicants with tattoos are more likely to do or abuse drugs. If the beneficiary admits to any drug use, Consulates will use this information against the applicant in order to deny the visa by making a substance abuse finding against them.

A finding of substance abuse is serious because an applicant who is a drug user or abuser may be denied admission to the United States pursuant to Immigration and Nationality Act Section 212(a)(1)(A)(iv). I would counsel anyone carefully who has a tattoo to be very honest about what the tattoo means. An applicant should be prepared to answer in- depth questions about something that may have been inconsequential to them. In my opinion, it would not be a bad idea to have the tattoo removed if possible. Of course the fact that a person has a tattoo does not mean that he or she is a substance abuser. It is scary that examiners are making that assumption, but I do not expect this scrutiny to go away. The best practice is to be aware that this questioning is taking place and to be prepared.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Consular processing , Department of State , Medical exams , Procedures

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On Thursday, June 25, 2009, at noon, attorneys licensed in California will be able to earn one free unit of continuing legal education credit in ethics on Second Life® by attending a seminar hosted by the Second Life Bar Association. Second Life is a online virtual world where people create avatars and then interact with others in the virtual world. I am a member of the Second Life Bar Association, a legal organization made up of lawyers, students and scholars from around the world who are interested in law and in interacting in a virtual environment.

The Second Life Bar Association has arranged for Carol Langford, an attorney and professor based in Walnut Creek, California, to give a lecture on ethics. Ms. Langford specializes in giving advice on legal ethics and discipline to attorneys, judges, law firms and corporations, and in representing lawyers and law students before the California State Bar in disciplinary and admissions matters. Ms. Langford has devoted a considerable amount of her time to training lawyers in issues involving law practice management. She has also co-written two books: a nationally adopted textbook entitled Legal Ethics in the Practice of Law, 3rd Edition (Lexis Law Publishing, 2007 )and The Moral Compass of the American Lawyer, Truth, Justice, Power and Greed (Ballantine, 1999).

Continue reading "Free Continuing Legal Education Credit in Ethics offered on Second Life®" »

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Attorneys , Continuing Legal Education , Second Life©

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Today I will be giving a presentation on immigration law along with my colleague, V. Thomas Langford, to the Air Force JAG serving at Travis Air Force Base in Fairfield, California. The Air Force JAG Corps are lawyers who provide legal advice to those serving in the Air Force.

Our training today will focus on the basics of immigration law. We will be covering family-based immigration law and outlining the procedures involved in petitioning for a family member to immigrate to the United States. We will also be talking about the Violence Against Women Act ("VAWA") and how an individual may self-petition for immigration status if he or she has been the victim of abuse or mental cruelty. Finally, we will discuss the naturalization laws as they apply to those serving in the military at a time of a conflict.

It seems that I always learn something while preparing for a presentation. While preparing for this one, I learned that staff from USCIS in Sacramento go to Travis Air Force Base twice a month to interview applicants for naturalization and administer the oath of citizenship on the same day. Kudos to USCIS for taking the time to do this. USCIS has an entire website page devoted to military naturalization ceremonies performed in May 2009. Included on it is the photo taken at Travis.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: U.S. military , Violence Against Women Act

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I recently became interested in exploring my genealogy. I was never really interested in it before but as I get older and my relatives get older, I feel it is necessary to find out information before the people with the knowledge are gone.

I have decided to start with what I know best and that is with the immigration documents. Of course, no one in my family has them so I will have to order copies. To my surprise, United States Immigration and Citizenship Services ("USCIS") has a web page devoted to genealogy research called, "Make A Genealogy Request." Also, much to my surprise, the website contains clear and detailed instructions on how to obtain records. On this website you can submit a search for records online or you can file a request through the mail. Perhaps the biggest surprise of all is the speed at which USCIS processes a request. According to their website on genealogy, requests for records are taking only four months. This is an amazing speed for USCIS and I wonder why other applications are not processed as quickly.

It has been the practice of USCIS to keep some of the files and to send the older ones to a National Records Center. In a new agreement announced today between USCIS and the National Archives, records of individuals who were born more than 100 years ago will now be transferred to the National Archives. They will now be considered permanent records and archived. Once a file is transferred, if will be possible to go to the National Archives in Kansas City or San Francisco (if the immigrant arrived at a port in San Francisco) to see the records. A request may be also submitted by mail.

There are some great resources out there. I will keep you posted on how my search goes.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Genealogy , Immigration history

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On June 1, 2009, new document requirements go into effect at land and sea ports for entry into the United States. Pursuant to the Western Hemisphere Travel Initiative ("WHTI") an individual may show one of the following documents in order to be admitted into the United States:

• U.S. or Canadian passport;


• Trusted Traveler Card (Nexus, Sentri, or Fast/Express);


• U.S. passport card;


• State or province issued enhanced driver's license.

California does not issue "enhanced driver's licenses." (Enhanced driver's licenses contain multiple levels of security features.) It is no longer possible after June 1, to travel to Canada and expect to return with just a California driver's license. You must therefore have proof of citizenship as indicated above or proof of lawful permanent residence (i.e., "green card"), or proof of some other kind of non-immigrant status in order to be able to return to the United States.

For more information about the document requirements, please see my previous post on "Free travel widget helps plan trips abroad and return to the United States." You may also go the U.S. Customs and Border Protection website on WHTI to obtain further information.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: U.S. Customs and Border Protection

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On Memorial Day, I was driving through Salinas and noticed that the farm workers were out in the fields working. They apparently were not given the holiday off. I could not help but wonder what legal status if any those people have in the United States and wondered if any type of immigration remedy would ever be available for them. It appears that a remedy may be on the horizon. On May 14, 2009, Rep. Berman (Democrat, California) introduced the Agricultural Job Opportunities, Benefits, and Security Act of 2009 (H.R. 2414) or AgJOBS. A companion bill (S. 1038) was also introduced in the Senate by Senator Feinstein (Democrat, California).

This bill would give "blue card" status to agricultural workers who have worked in the United States during a 24 month period ending on December 31, 2008. In order to receive the status, an applicant would have to show that he or she: 1) worked for 863 hours or 150 work days; or 2) earned at least $7500 from agricultural employment. An individual receiving "blue card" status would be eligible to travel and to work in the United States.

Individuals with "blue card" status would be eligible to adjust to lawful permanent residents (i.e., receive green cards) upon a showing of continued agricultural employment as specified in the Bill. (There are three alternate methods of meeting the continued agricultural employment requirements.) Derivative family members (spouses and children) would also be eligible for the status.

A prior version of this Bill was introduced in 2007 but had failed. This bill is a very legitimate remedy to give status to those who are in the United States already and who are performing work that is much needed in our economy.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: New Immigration legislation

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On May 11, 2009, the Department of State released a list of "countries of particular concern." The governments of these countries have committed or tolerated particularly severe religious human rights violations. The countries include: China, Burma, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzkebistan.

Also contained in the announcement is a list of sanctions/restrictions that the U.S. government has imposed on each country due to their religious freedom violations. This document would be useful in a political asylum case should the applicant be from one of the above-mentioned countries as the U.S. has now recognized that the governments in these countries commit or permit severe human rights violations based on religion.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Political asylum

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In order to petition for your relative to immigrate to the United States, you must: 1) be in the correct legal status and 2) not have been convicted of certain crimes. I will discuss both requirements in this post.

Legal Status

If you are a citizen of the United States, you may petition for your parent, spouse, child, unmarried adult son or daughter, and brother or sister.

If you are a lawful permanent resident of the United States, you may petition for your spouse, child and unmarried son or daughter.

It is not possible to petition for any other kind of family relative such as grandparents, grand-children, cousins, aunts or uncles. Similarly, the only persons who may petition are citizens and lawful permanent residents. Non-immigrants may not petition for relatives to immigrate permanently.

In order to start the process, a "petition for alien relative" is filed with United States Citizenship and Immigration Services ("USCIS") on Form I-130. In general, the petitioner files it with proof of legal status and proof of the relationship. I will discuss the type of proof that needs to be filed with petitions in a later post.

Crimes that make a petitioner ineligible to file

A petitioner is prohibited from petitioning for a relative if he or she has been convicted of "any specified offense against a minor" unless the Secretary of Homeland Security determines in his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. The list of offenses include:

• An offense (unless committed by a parent or guardian) involving kidnapping;
• An offense (unless committed by a parent or guardian) involving false imprisonment;
• Solicitation to engage in sexual conduct;
• Use in a sexual performance;
• Solicitation to practice prostitution;
• Video voyeurism as described in section 1801 of Title 18, United States Code;
• Possession, production, or distribution of child pornography;
• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
• Any conduct that by its nature is a sex offense against a minor.

Continue reading "Can I petition for my relative to immigrate to the United States?" »

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Immigration Law , USCIS , Visa Petition

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United States Citizenship and Immigration Services ("USCIS") has recently published new guidance on the type of proof veterans may provide to establish eligibility for naturalization. In the past,when applying for naturalization pursuant to Sections 328 and 329 of the Immigration and Nationality Act (Naturalization through service in the Armed Forces or Naturalization through active-duty in the Armed Forces during certain specified periods of hostilities), veterans were required to submit a certified Form N-426, Certificate of Military or Naval Service. It was quite burdensome for veterans to obtain a certified Form N-426 when they were no longer on active duty because they had to request certification by sending it to the military records center for certification. It added delay to an already lengthy process.

Now USCIS has issued a new memo indicating they will accept an uncertified Form N-426 from a veteran applicant for naturalization if all of the following conditions have been met:

1. The applicant is separated from the Armed Forces at the time of filing Form N-400 (Application for Naturalization);
2. The applicant submitted a completed but uncertified Form N-426;
3. The applicant submitted a photocopy of his or her DD Form(s) 214 (report of separation) for all periods of time captured on Form N-426; and
4. The DD Form 214 lists information on the type of separation and character of service.

When all four conditions are met, the Nebraska Service Center will process the Form N-400, Application for Naturalization accompanied by an uncertified Form N-426.

You may find the entire text of the USCIS memo here: Acceptance of DD Form 214 as Certification of Military or Naval Service for Veterans of the U.S. Armed Forces.

For more information on military naturalization, please see my previous post on "USCIS releases fact sheet on military naturalization."

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Citizenship , U.S. military , USCIS

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This year is very different in terms of the number of people filing for H-1B visas. Last year, USCIS, received enough applications on April 1 such that the cap was reached on the first day applications were accepted. This year, it is a different story.

As of May 4, 2009, USCIS had received 45,000 petitions toward the 65,000 cap limit. Thus it is still possible to file an H-1B petition for a job beginning October 1, 2009. (The government fiscal year begins on October 1.) There is also an additional 20,000 visas available for persons with advanced degrees (a Master's degree or higher). Although USCIS has received 20,000 of these applications, they are still accepting additional applications because it has been their experience that not all of these petitions are approvable.

You can check the USCIS website on current cap counts for H-1B filings.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: H-1 B Visas , USCIS

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On April 19, 2009, I wrote a post about Mr. Demjanjuk and Germany's request to extradite him. Specifically Germany has requested the extradition of Mr. Demjanjuk so that he can be tried on 29,000 counts of human rights violations when he was serving as a concentration camp guard in the Nazi Germany. Mr. Demjanjuk filed a request to re-open his deportation case and a stay of removal seeking relief under the Convention Against Torture.

Today the 6th Circuit Court of Appeals denied his request for a stay of the removal order. The Court noted that the BIA denied the request to reopen his case because the BIA concluded Mr. Demjanjuk failed to submit sufficient evidence to show that he would be subjected to torture in Germany. Similarly, the Appeals Court found that Mr. Demjanjuk would not suffer irreparable harm in being transported to Germany. The Government has represented that they will transport Mr. Demjanjuk in an aircraft equipped as a medical ambulance and attendance by personnel. Under such circumstances, the Court ruled
that Mr. Demjanjuk's removal to Germany is not "likely to cause irreparable harm sufficient to warrant a stay of removal."

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Convention Against Torture , Removal

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