Immigration Debate

Following the Migration Advisory Committee’s (MAC) recommendations regarding the Tier 1 and Tier 2 of the Points Based System (PBS) the Government has now approved several policy changes which will be implemented on 6 April 2010.

Some of the important changes will include:

Tier 1 General

•Initial leave to enter/remain is reduced from three to two years, with a three year extension subject to evidence that the individual is in highly skilled employment;
•Applicants who are already in the UK under Tier1/HSMP will be able to rely on transitional arrangements;
•Age - a threshold for the age category is extended to allow points to be claimed for those up to the age of 39;
•Qualifications - reinstatement of points award for a bachelor’s degree (30) with reduced points being awarded to a PhD holders (45);
•Previous earnings - increase of the minimum threshold, points to be awarded for earnings above £25,000;
•Additional salary band is introduced with a threshold of £150,000 (75 points to be awarded);
•Professional qualifications appearing on the Points-Based Calculator (PBC) on the UKBA website are eligible for points according to the PBC results.

Tier 1 Post Study Work

•Graduates of UK medical schools (doctors) are now able to switch to Tier 1 PSW category within 12 months of completing the Foundation Programme rather than graduation to allow them completion of speciality/GP training;

Tier 2 / Work Permit

•Prospective earnings - 25 points are be awarded for earnings above £32,000;
•All non shortage occupations in Tier 2 General category attract 5 more points than in Tier 2 ICT (30 as opposed to 25 as ICT);
•All applicants in non-shortage occupations have to score points in the prospective earnings category to qualify under Tier 2;
•Applicants applying for a Tier 2 extension are automatically granted 50 points without the need for previous earnings test;
•Rules on allowances will remain unchanged;
•Changes of jobs within the same SOC code whilst in employment with the same sponsor don’t require new application unless they fall into exceptions;
•Change of employment applications are considered against the same criteria as initial application including a RLMT where applicable;
•Intra-Company transfers are being split into 3 categories: Established Staff, Graduate Trainee and Skilled Transfer;
•Leave to enter/remain under the Tier 2 ICT category as a Graduate Trainee and Skilled Transfer is for limited period only and migrants are not able to switch into different immigration category;
•Tier 2 ICT will no longer leads to settlement.
The UK Government is currently reviewing the overseas earnings multipliers to ensure that they are up-to-date, further changes are likely to be introduced at the later stage.

Furthermore, the UK immigration authorities decided to implement a new category of the ‘Highly Trusted Sponsor’ under the Points-based System. On 6 April 2010 this category will be introduced for Tier 4, however, later this year it will be extended to businesses.

Contact us as soon as possible if you are concerned or wish to know more on how the proposed changes might impact your immigration status and future options.

The thought of a visa denial is very distressing for many bi-national couples. The following article will briefly discuss visa denials generally and provide information about forestalling a denial.

The US visa process for the spouse or fiancee of a United States Citizen is somewhat byzantine as there are multiple departments and agencies that adjudicate different aspects of visa petitions and applications. Even after a visa is issued, the alien fiancee or spouse must still pass through a Customs and Border Protection inspection at a port of entry in the United States of America.

The United States Citizenship and Immigration Service (USCIS) is the first adjudicator of virtually every family based visa petition. USCIS will evaluate a couple’s documentation as well as their factual situation in order to determine if they meet the general legal requirements. USCIS also takes measures in order to ensure that the petitioner is eligible to petition for the benefits being sought. During USCIS’s adjudication, steps will also be taken in order to make certain that the petition complies with the provisions of the International Marriage Broker Regulation Act (IMBRA) as well as the Adam Walsh Child Protection Act (AWCPA). In most situations, the success of a USCIS petition will hinge upon the documentation presented to the reviewing officer.

In the vast majority of family based cases the next phase of the process involves the United States National Visa Center (NVC). This part of the process could be difficult for those couples who are seeking a K3 marriage visa as recently announced NVC protocols require the “administrative closure” of certain K3 visa applications. Even though this is not an actual denial, it has the same impact as a denial because the application will not be adjudicated. Fortunately, a married couple may still pursue immigrant visa benefits.

In virtually all family based petitions, the last part of the visa process happens at the American Embassy or Consulate-General with jurisdiction over the alien spouse or fiance. In Thailand, the Consular Section of the US Embassy in Bangkok adjudicates nearly all family based immigrant visa applications for Thai nationals. Consular Officers will scrutinize the facts of the visa application in order to determine if the prospective Beneficiary should be admitted to the United States of America. In a K-1 visa case, the adjudicating officer will likely scrutinize the bona fides of the relationship as well as the applicant’s subjective intent to marry in the USA. However, the authenticity of a spousal visa application is investigated as well, but these issues can be especially acute during the visa application process for a fiancee.

After a visa interview, it is possible that the application will be denied outright, but this is not usually the case. More common is the issuance of a 221(g) refusal which is essentially a request for further documentation. In most cases, when the documentary insufficiency is overcome the visa will be issued.

The K3 visa process is somewhat cumbersome and new administrative initiatives have been announced which will likely result in bi-national couples having less control over the venue in which the foreign spouse will be interviewed.

In previous articles this author has written about the current status of the K3 visa process. At this time, K3 visa processing has become more unpredictable because the National Visa Center (NVC) will no longer process I-129f petitions for K3 visas if the underlying I-130 petition arrives before, or with, the I-129f. It is a credit to the United States Citizenship and Immigration Service’s (USCIS) efficiency that they are processing I-129f applications as well as I-130 applications in a quick and efficient manner. This being said, for those couples seeking fast marriage visa benefits this efficiency could end up creating unforeseen problems.

The United States National Visa Center has stated that their personnel will “administratively close” aforementioned I-129f petitions. This could lead to a difficult situation for those couples who specifically married in a certain jurisdiction in order to process the foreign spouse’s visa application at that jurisdiction’s US Embassy or Consulate-General. Pursuant to the language of the statute creating the K3 Visa, the K3 visa application must be adjudicated by the Diplomatic of Consular Post in the foreign jurisdiction where the marriage took place. This provided some couples with an opportunity to “Forum Shop” for the overseas Embassy or Consulate where they wished the process their visa application. For example, if a couple wished to process a visa application in Thailand, they could ensure that the K3 visa application would be processed in Thailand simply by getting married in Thailand.

Currently, because K3 visa processing remains uncertain, there is a distinct possibility that “shopping” for a visa interview venue will become a thing of the past. That being said, Immigrant visa applications for travel documents such as the CR1 visa and the IR1 visa could be sent to the foreign spouse’s country of Nationality as Embassies and Consulates only process third country nationals as a courtesy and if inconvenient will send the application to the Post in the country of the Beneficiary’s nationality.

One can hope that these recent changes will not result in too many difficulties, but it remains to be seen if this will, in fact, be the case. Therefore, as long as the United States Citizenship and Immigration Service (USCIS) continues to process I-130 petitions quickly, it remains probable that the United States National Visa Center will continue to administratively close K3 cases and thereby forestall the previously mentioned practice of forum shopping. For those alien fiancees and spouses located in countries such as Burma (Myanmar) or the Kingdom of Cambodia this policy shift could cause unforeseen delays as both of these countries’ governments can make it very difficult for a native born woman to marry a US Citizen man.

Many individuals who wish to become immigrants of the United States of America consult immigration attorneys with regards how to go about this. The need to hire one is actually very important because the laws regarding immigration in the United States of America changes ever so often and are quite complicated. Finding a good lawyer is paramount to a high percentage of success.

Membership and Affiliations

Most of the better lawyers are members of societies or associations that have their own regulations which usually govern them. These associations or groups also help their members by keeping them up to date with this specific aspect of the law. Members of these groups also tend to help each other or look out for each other. Two of the more important associations to look for are the American Immigration Lawyers Association and the State Bar.

Belonging to both groups may be a good indication of the professionalism and good standing of immigration attorneys. It is important that he or she is well versed in immigration law and other connected fields to be able to help clients with their issues. Of course, some common sense and gut feeling should also help when finding one, some people go with how they feel when meeting with any individual and if one can read or understand people well, it can be a basis for choosing.

References

References from other professionals of good standing and good reputation are also viable sources for lawyers specializing in the law. Consulting someone who specializes in another aspect of the law or friends and family who have had experience with this side of the law may turn out well. The ideal candidate’s standing in his own community should also be taken into consideration when reviewing his credentials.

It is preferable to hire a morally upright but wily enough individual, to be able to spot legal or viable ways to help his clients achieve their goals. Other references may be teachers from law school or other law firm members who have a good idea of who they can trust or refer to clients with specific needs.

Going online and researching associations that can recommend good attorneys is also another form of referral. There are groups that catalog an attorney’s achievement and performance as a form of advertisement to future clients. Some law professionals also have their own websites that have the answers to whatever frequently asked questions prospective clients may have for him or her.

Naturalization is the process by which a non-citizen applies for, and becomes a citizen. Citizenship itself, however, does not necessarily have to be through naturalization.

People want to become US citizens for all sorts of reasons. They are all good reasons. Filing for US citizenship is one of the best things you can do for yourself. If you are eligible to become a citizen, it means that you have been a permanent resident (green card holder) for quite some time. You may have been in the United States for years before. In any case, it is likely that you have invested a lot of time, money, and effort to build your life in the United States.

Think of the fees you pay to become a citizen as an insurance premium on that life. What would you pay to help safeguard what you’ve worked for?

And the policy comes with many other perks, too. You get the right to vote, giving you a voice in your adopted country. You get the right to petition more quickly for loved ones to immigrate to the United States. You are able to travel freely. And no more worries about time spent outside the United States, renewing cards, filing change of address forms, or the myriad of other obligations placed on noncitizens. And finally, with extremely rare exceptions, you cannot be deported. Many otherwise good people find themselves in the wrong place at the wrong time. Getting charged with a crime when you are not a citizen means you have to deal with the government twice. Once for the criminal case - and you get a speedy trial, right to a jury, right to a lawyer, and you’re innocent until proven guilty. And once more in immigration court, which allows for mandatory detention, no bond, no speedy trial right, no jury, no right to a lawyer, and it’s your burden to prove you have the right to stay in the United States.

It only matter when it matters, but when it does, it’s a big deal.

You filed your immigration case, you paid all the fees. If USCIS asked for it, you responded to their request for evidence (RFE). You got your interview.

That was four years ago.

Now, many frustrated phone calls and InfoPass appointments later, you continue to be told the same thing: security checks. Or perhaps it’s a different story every time: extended review, file is with another agency, name check, file is lost…

What are your options?

In some cases, it may be appropriate to file a lawsuit against the USCIS and other government agencies. There is a law known as the Administrative Procedures Act (5 U.S.C. §500 et seq, the “APA”). Among other things, it says that when an agency (such as USCIS) is given a task to do by Congress, it has to do it, and within a reasonable time. Now, what is considered a “reasonable time” is of course subject to interpretation. Every case is different, and only an experienced attorney has the professional judgment to say it one way or the other.

Assuming the delay is unreasonable, the APA does give you the right to file a lawsuit. Typically in these lawsuits, you sue the Secretary of the Department of Homeland Security, the USCIS Director, the district director of the field office your case is pending in, (sometimes) the director of the main USCIS Service Center, and quite possibly, the FBI (especially in security check delay situations.) The lawsuit itself is known as a writ of mandamus - a request to the Court to force (mandate) a government agency to do something. In this case, you are asking the Court to tell USCIS to make a decision.

You don’t have the right to ask for an approval of your application. You only have the right to ask for a decision. That decision may be good or bad. How can you tell? There is no way to know for sure, but an experienced attorney can certainly tell you whether it’s a good idea to file or not.

American courts don’t agree on whether they can even hear cases like this. By law, many decisions of USCIS cannot be reviewed by a court. We call this “judicial review” (or lack thereof!) In a typical writ of mandamus, however, you are asking the court not to review the decision itself, but the pace of the decision. In other words, you are saying, “Your Honor, I filed an application for my green card and CIS sat on it for 4 years. I know you can’t tell them to approve it, but you can tell them to make a decision, because they have a duty to do so within a reasonable time, and 4 years is unreasonable.”

Many courts agree that while they cannot tell USCIS to approve or deny an application, they can tell them to hurry up. However, some courts say that if they can’t say anything about the decision, it makes no sense that they could say anything about the pace of the decision either. These courts see the “pace” of the decision as part of the decision itself, and if it can’t review the decision, it can’t review the pace of the decision either.

Courts have gone all over the map on this one. Sometimes, even within the same courthouse, two different judges will reach two different conclusions on two writs of mandamus cases!

Successful writs of mandamus work in an interesting way. Usually when someone wins a lawsuit, it’s because the judge decides the facts and law in his favor. Writs of mandamus may achieve the intended result before the government even files an answer to your complaint. Many of our clients, for example, came to us after waiting 3, 4, 5 and up to 7 years for their green cards or citizenship. We file the writ of mandamus. The government attorney asks for a brief extension of time. We agree. The government attorney then tells us that USCIS is ready to approve the application. We dismiss (withdraw) the lawsuit. The government doesn’t get dragged into a costly litigation, our client has his green card, and everybody goes home happy.

But this is not always how it works. Sometimes the review of the file brought on by the lawsuit reveals a problem in the alien’s immigration history. If something like that is found, the client may actually wind up in removal proceedings, because USCIS will have found a way to not only deny the benefit he was applying for, but take away the status he already had!

In our experience in dealing with these lawsuits and the clients who bring them, we have heard all kinds of mandamus “folklore” ranging from “the government will retaliate against your family if you file,” to “all I have to do is file and I will get my green card within 30 days,” to “these lawsuits just don’t work.”

The truth is that filing a writ of mandamus is just another option available to you. It is a very complicated option, one that a competent attorney must analyze. Like any option, it has benefits, and it has risks. And these benefits and risks are different for each case.