California Immigration Lawyer Blog

When people start to file immigrant petitions with US Citizenship and Immigration Services ("USCIS"), they realize that there is a fee for every part in the process. There is a fee for the relative petition paid to USCIS, and a fee for the visa, paid to the Department of State. Now there is a fee to have the green card processed and mailed to you because somehow all of the other fees you paid do not cover that cost.

Beginning in February 2013, USCIS began charging a "USCIS Immigrant Fee." This fee is required for all persons immigrating to the United States by obtaining a visa at a consulate or embassy abroad, including Canada or Mexico.

The fee is paid online after receiving the visa package from the Department of State and prior to entering into the United States. The fee must come from a U.S. bank so it generally means that the sponsor or a relative in the United States will be paying the fee. The fee is currently $165 and it is per person.

There are a few exceptions of persons with certain statuses who do not have to pay the fee. These exempt statuses include:

• Children who enter the United States pursuant to the Orphan or Hague Adoption programs
  
• Iraq and Afghan special immigrants
  
• returning residents (SB-1s)
  
• K visas
  

The USCIS immigrant fee is paid online. You will need the following information to pay:

• The alien number of the applicant;
  
• The Case ID number of the applicant;
  
• Your checking account information, or;
  
• Your debit or credit card information.

  If you do not pay, you will not receive your green card. It is therefore advisable to pay the fee as soon as you receive the packet from the Department of State.

  
  

  Posted by Geri Kahn | Permalink | Email This Post

  Posted In: Consular processing , Department of State , USCIS , Visa Petition

I thought I had heard it all but now USCIS has a page on Facebook. Yes, you can now "like" U.S. Citizenship and Immigration Services ("USCIS") on Facebook. To their credit, it is a nice page. It has pictures and posts on a variety of topics such as citizenship, openings of new offices and filing procedures. It also is easy to navigate. It is great to see USCIS reaching out to a place where the public may easily find them.

I am not so sure though that they are going to like what they see. Plenty of the comments are critical. One person responded that TPS (Temporary Protected Status) for Syria came too late. Another individual is advertising his services in assisting with immigration. Yet another criticized the opening of the quota for the H-1B program. I suppose USCIS will have to take the bad with the good.

Overall, if it helps people find the information they need, I think the Facebook page is useful. It seems a lot of people are finding it interesting. They already have 4,331 "likes."

The issue of applying or having applied for Selective Service comes up a lot when applying for naturalization. Recently I have seen a number of clients at my San Francisco office who have not registered for Selective Service. I will write a couple of blog posts on the issue of Selective Service and naturalization.

Applicants for naturalization need to establish good moral character for the five years prior to the filing of the naturalization application (Form N-400) up to the time the oath of allegiance is taken. Although there is no specific law, USCIS (United States and Citizenship Services) interprets a failure to register for Selective Service as an act that reflects negatively on an applicant's ability to establish good moral character.

The Selective Service agency is the agency responsible for maintaining a list of men who are eligible the military draft, if we should have one. All men, even if in the United States illegally, between the ages of 18-25, must register for Selective Service. (If you 26 or older, you are too old to register.) A Social Security number is not required to register. The only exception to the registration requirement is for men who are in the United States in valid non-immigrant status (i.e., students on F-1 visas or professionals on H-1B visas). Women are not required to register.

You may register for Selective Service online on their website or you can use the link at the bottom of this page. You may also register at a post office. In addition, you can register if you are applying for a student loan by completing a Federal Student Financial Aid (FAFSA form). You can check "Register Me" on Box #22 of that form, and the Department of Education will furnish Selective Service with the information to register. Finally, if you are applying for adjustment of status in the United States, you will automatically be registered upon USCIS' acceptance of your Form I-485. (The last page of the form indicates that you agree to have USCIS transmit your information to Selective Service.)

If you are not sure whether or not you have registered with Selective Service or you want proof that you have registered, you may go to their website and click on the link to check registration.

My next few blog posts will discuss how to obtain a status letter from Selective Service and what to do if you have not registered with Selective Service.

I recently wrote a post on whether the receipt of health insurance through San Francisco Healthy Families made that person a public charge. I concluded that it did not.

Soon after I wrote that post, United States Citizenship and Immigration Services ("USCIS") issued some new guidance on the definition of public charge. It is helpful because it lists many programs and specifies what does and not support a public charge definition. For instance, it clarifies that the receipt of unemployment compensation, Title II Social Security benefits and Veteran's benefits do not make an individual a public charge.

USCIS issued guidance on public charge determinations on October 20, 2009.

I recently had a client inquire as to whether her enrollment in San Francisco's "Healthy Families" health insurance plan would endanger her green card application because she might be considered a "public charge." I originally thought it would be a problem but it turned out not to be.

San Francisco has a health insurance program called "Healthy Families." It is for uninsured children and low income individuals living in San Francisco. Members pay a small monthly fee and the program is partly funded by the government.

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."

An individual becomes a "public charge" when he or she is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.

USCIS has a very extensive article on their website that discusses what type of benefits, if received, would and would not be relevant in a determination concerning public charge. Non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Specifically regarding San Francisco Healthy Families, USCIS states that Healthy Families benefits "are not considered for public charge purposes."

In an interview with the New York Times, about comprehensive immigration reform, the director of United States Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, indicated that the agency was making plans to accommodate the filing of more visa applications although no new laws have been passed. He stated that the goal was to be able to rapidly process a large increase in applications if some kind of comprehensive immigration reform bill is passed by Congress.

He told the paper that USCIS is currently able to handle applications for about six million applicants a year. Under some legalization proposals, the agency may receive that number of applications in a few weeks.

There are no serious legalization proposals currently pending before Congress. It is heartwarming to me though that USCIS thinks there might be and is actively planning on how to be prepared for it.

Applying for citizenship can be a daunting task because your entire immigration history is reviewed at the time you apply for citizenship. It can also be an expensive one because the filing fee with the biometrics is quite expensive at $675.00.

If you are looking for legal assistance with your citizenship application, you are low income and you live in the San Francisco Bay area, you may wish to consider contacting the legal department of Jewish Family and Children's Services ("JFCS"). The agency provides legal assistance with a variety of family based immigration petitions and applications. The staff also assists people with applying for citizenship and disability waivers (Form N-648). They do an outstanding job and as recognition of their work in the community, United States and Citizenship Services ("USCIS") just awarded them a grantfor the purpose of citizenship assistance and education.

For legal immigration assistance, you may check out their citizenship services websiste or call the emigre department of JFCS at (415) 449-2900.

I previously wrote a post on the Department of State's Social networking site promoting cultural exchange. Now the Department of Homeland Security is following with their social networking site called, "Our Border." The purpose of the site is to facilitate conversation between people and groups interested in issues surrounding the southwest border. Groups that are established on the site include: Citizenship and Immigration Services ("CIS"), Customs and Border Protection ("CBP"), Immigration and Customs Enforcement ("ICE") and Comprehensive Immigration Reform. It is interesting that on the DHS social networking site, the Comprehensive Immigration Reform group has the most members.

Every day the site will feature a video from the DHS' Youtube channel. (Look how far DHS has come!) Users can also post their own videos or posts. There are currently over 290 members of the networking site.

As a San Francisco bay area immigration attorney, I was kind of skeptical at first about a social networking site on border issues, but at looking at the posts, I have changed my mind. There appears to be some interesting discussion from a variety of people about border issues. There are also some good links to news stories on immigration topics. I joined the site and hope that it really will be a tool for open discussion. I will report back.

I usually spend some time every day at my San Francisco Bay Area immigration law office making inquires on pending cases. It is a frustrating process because I rarely receive answers and when I do, they usually are not helpful.

United States Citizenship and Immigration Services ("USCIS") has recently released guidance on how to make inquiries at their Service Centers. They provide a three step process. The first step is to call their National Customer Service Center at 1-800-375-5283. If the issue is not resolved in 30 days, you proceed on to the next step which is to email the USCIS Service Center where your case is pending. The email addresses are:

If there is no response to the email, you proceed to the last step which is to notify the USCIS Headquarters office of Service Center Operations by email at SCOPSSCATA@dhs.gov. The notice indicates that you will receive a response from this email within ten days.

It remains to be seen whether this system actually works. I will try it out in a few cases and will report back what happens.

The employment verification form (Form I-9) is a form used to document the eligibility of a new employee to work in the United States. The current version of the form states on the top that it expires on 06/03/09. You may still continue to use this form despite its expiration date. USCIS recently issued an update on its website which indicates that the current form remains valid. USCIS has filed for permission to extend the validity of this form with the Office of Management and Budget ("OMB"). While that extension is pending, employers may use the current version of Form I-9.

USCIS has recently published a new fact sheet of common questions and answers for members of the U.S. Armed Forces and their families. The fact sheet contains the most frequently asked questions that USCIS receives.

The fact sheet is worth reading if you are in the Armed Forces because the answers to some of the questions are different (and usually more advantageous) to members and/or dependents of those in the Armed Forces. For instance, if you are a civilian, obtained your green card through a marriage to a U.S. Citizen and you have been married for less than two years, you must file Form I-751, Petition to Remove Conditions on Residence to remove the conditional residence and obtain your permanent green card. You must file this form even if you intend on applying for citizenship a year later. (Persons who are married to U.S. citizens may apply for citizenship in three years.)

Members of the armed forces do not have to file Form I-751, Petition to Remove Conditions on Residence to remove conditional residence obtained through a marriage to a U.S. Citizen, if the foreign born spouse was inducted or enlisted in the military and is applying for naturalization based on qualifying military service. Thus, military personnel are permitted to "skip a step" and do not need to file form I-751.

Additional questions and answers and helpful email addresses to USCIS liaisons are included on the fact sheet.

I am writing the second of a multi-part series of posts on how to bring family relatives to the United States permanently. The first post I wrote provided general information on bringing family relatives to the United States. (See my post, "Can I petition for my relative to immigrate to the United States?") This post will focus on how to petition for your brother or sister to come to the United States permanently.

In order to petition for your brother or sister you must file Form I-130, Petition for Alien Relative with United States and Citizenship Services ("USCIS") along with proof that you are a United States Citizen and that you are related to your brother or sister. I will discuss the steps you must take in more detail below.

Obtain Form I-130

You may obtain Form I-130, by clicking on the link in this post. At the same time that you obtain the form, you should also print out the instructions to the form. They are more detailed than the instructions I will provide in this post and provide the mailing address to where you will need to send the form.

Proof of U.S. Citizenship

You may prove that you are a U.S. citizen by sending one of the following documents to USCIS with your petition:

• A copy of your birth certificate (if you were born in the United States) issued by a civil registrar, vital statistics office, or other civil authority.
• A copy of your naturalization certificate or certificate of citizenship issued by USCIS or the former INS.
• A copy of your Form FS-240, Report of Birth Abroad of a Citizen of the United States, issued by a U.S. embassy or consulate.
• A copy of your unexpired U.S. passport. OR
• An original letter from a U.S. consular officer verifying that you are a U.S. citizen with a valid passport.

Continue reading "How do I bring my brother or sister permanently to the United States?" »

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?" »

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."

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.

Requesting continuances of cases in Immigration Court can be tricky. You never know if it will be granted because it most often depends on the judge's discretion. There is very little case law on when continuances should be granted. Fortunately, a few days ago, the Board of Immigration Appeals ("BIA" or "Board") decided a case in which it has provided some guidance on when a continuance may be granted.

In Matter of Hashmi, 24 I&N Dec.785 (BIA 2009), the respondent (Mr. Hashmi) was married to an American citizen who had filed a visa petition (Form I-130) on his behalf. The Immigration Judge permitted several continuances in the proceedings to allow time for USCIS to adjudicate the visa petition. If the visa petition would have been approved, Mr. Hashmi would have been immediately eligible for adjustment of status (green card). Mr. Hashmi managed to obtain four continuances but the Judge denied the fifth request. The Judge denied it because he stated that he was forced to meet case completion goals and he needed to make a decision because the case had already been pending for 18 months in the Immigration Court. Mr. Hashmi appealed and after the Board of Immigration Appeals initially denied it, he was finally was successful at the Third Circuit. The Third Circuit reversed and remanded back to the Board of Immigration Appeals.

Upon the case's return to the Board, the BIA considered what factors would constitute good cause for the grant of a continuance in a situation in which the person in removal proceedings (known as the "respondent") has a visa petition pending and would be immediately eligible for adjustment of status (green card) but is waiting for USCIS to adjudicate the visa petition. The BIA decided that there are five factors that a Judge must consider before ruling on a Motion to Continue in this situation. These factors are:

1. the Department of Homeland Security's response to the Motion to Continue;


2. whether the visa petition is prima facie approvable;


3. the respondent's statutory eligibility for adjustment of status;


4. whether the respondent's application for adjustment of status merits a favorable exercise of discretion;


5. the reason for the continuance and any other relevant procedural factors.

The Board stressed that these factors were "illustrative, not exhaustive." (Id., at 790)

Finally, the BIA found that a judge's "case completion goals" "is not a proper factor in deciding a continuance request." (Id. at 794)

Overall this is a very helpful case because it provides us with some guidance in a situation in which we had none before. It will now hopefully be easier to obtain continuances in cases when, through no fault of their own, respondents have been waiting for USICS to adjudicate their petitions.

A few days ago I saw a client from the San Francisco Bay area who had different spellings of his name on his government issued documents: one version on the green card, one on the California Driver's License and finally another on the Social Security card. In the past, the different versions of spelling did not matter so much. A person could usually explain the difference to an employer if there was a question when completing the I-9 form. Unfortunately a discrepancy between what USCIS shows and what Social Security shows may now mean that he may not get hired because if an employer uses e-verify, the system could not verify that he is the same person authorized to work in the United States.

E-verify is an internet based system operated by the Department of Homeland Security in cooperation with the Social Security Administration that permits participating employers to electronically verify the employment eligibility of their newly hired employees. (For more about e-verify, see my previous post, "To e-verify or not to e-verify, that is the question.") One of the criticisms with e-verify is that there are mistakes such as this when a person has legal status but the data used is inconsistent.

The best way to resolve the problem is to make sure that both agencies have the correct spelling of your name. Not only is it necessary to get around the problems with e-verify but later in life, you may wish to receive Social Security and you will want to make sure that you have been credited with all of your earnings.

If the problem is with USCIS and you have a green card, you can file a Form I-90 to correct the spelling of your name and obtain a new green card. If the error is the fault of USCIS, the application is free. You must send the application in with proof of the correct spelling of your name.

If you are applying for citizenship and your name has a minor spelling or translation error, you may be able to convince the officer that you do not need to make a name change, but rather the mistake is simply due to a mistake in translation. You should bring a document with you that shows the correct spelling on it to show the officer. You will then obtain a certificate of naturalization with the correct spelling of your name and your name will be correct in USCIS records.

If you wish to change your name and then change your immigration documents, you will need to obtain a court order of your name change. Once you have the court order, you may submit it with either your Form I-90 (to obtain a new green card) or with your application for citizenship so that your new name will be placed on the naturalization certificate.

Continue reading "How to inform Social Security and Immigration if my name is misspelled or it changes " »

Tomorrow (Saturday), April 4, 2009, at 3:00 p.m. (pacific daylight time), I will be giving a presentation on Second Life© (www.secondlife.com) to a group of avatars on how to bring a fiance (K-1) or spouse to the United States. The group that has asked me to speak is called "crossing borders." It is comprised of people (avatars) who have met on Second Life and now wish to bring their relationships into real life.

I will be talking about the following topics:

• consular processing vs. adjustment of status;


• tips on filing a petition with USCIS;


• tips on preparing for the interview.

If you are on Second Life and are looking for the meeting, send me an IM (to my avatar "Geri Kuhn") and I will send you a landmark to the meeting. Hope to see you there.

Photo by DeusXFlorida

The Department of Homeland Security ("DHS"), Office of Immigration Statistics, has recently released its report: Naturalizations in the United States: 2008. In 2008, United States and Citizenship Services ("USCIS") naturalized 1046,539 people. This number is the highest number of people naturalized in one year and broke all previous records. Out of that number, 297,909 resided in California. California's numbers make up 28.5% of the total number of people naturalized.

The San Francisco-Oakland-Fremont metropolitan area was the sixth highest area in terms of where people who naturalized were residing. The San Jose-Sunnyvale-Santa Clara area followed closely behind as the ninth highest area.

I am currently working on a H-1B petition for an accountant in a northern California accounting firm. I was therefore interested when I saw an article about H-1B fraud posted on AILA's (American Immigration Lawyer's Association) website. While the website is open to the public, there is a special area for members only and this is where I saw the article.

Basically an AILA member did a Freedom of Information Act ("FOIA") request and accidentally received the attached USCIS internal H-1B referral sheet. The sheet indicates areas which, if seen in a H-1B petition, United States Citizenship and Immigration Services ("USCIS") may think that the petition is fraudulent. For instance, one of the possible markers for fraud, in the eyes of the USCIS, is a petition for a position as an accountant. Another marker is if the size of the company. If the company has less than 25 employees, it apparently looks fraudulent to the USCIS. Both of these markers appear in my case.

It appears that the adjudicator, upon seeing possible indications of fraud, would complete this form and then send the case on for investigation.

This form contains useful information because it tells us how USCIS thinks. I cannot change the facts in my case but at least I know what the concerns of USCIS are and can prepare for them.

In a major change of policy, United States Citizenship and Immigration Services ("USCIS") is now allowing people to bring cell phones into the building located at 630 Sansome Street in San Francisco.

Previously, the policy was that if you had a cell phone with a camera, you were not permitted to bring it into the building. Effective immediately, you may now bring a cell phone in, even if it has a camera. This policy applies to all visitors with the only restriction being that you are not permitted to take any pictures or use the phone as a recording device while in the building. If you do take a photo, you will be fined $125.00 and your phone will be taken away from you by Federal Protective Services.

The new policy will be in effect for a 90 day trial period. If all goes well and there are no incidents, the policy will remain in place.

I think this is a great change and a very welcome development.