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< Back to current issue of Immigration Daily

ILW.COM August 2009 Citations

by Lawrence F. Johnson, Paula Singer, Lynn Shotwell, David L. Cleveland, Jeff Joseph, Douglas Hauer, Steve Springer, Sardar Durrani

Editor's note: We share the citations from all August 2009 ILW.COM seminars.

Citations for ILW.COM's Seminar Citizenship for Beginners

From David Isaacson

STATUTES
INA § 301(a)
INA § 101(a)(38)
INA § 301(f)
INA § 320
INA § 101(b)(1)
INA § 101(c)(1)
INA § 322
8 USC 212(a)(6)(C)(ii)(II)
8 USC § 212(a)(10)(D)(ii)
8 USC § 237(a)(3)(D)(ii)
8 USC § 237(a)(6)(B)

REGULATIONS
8 C.F.R. § 320.1
8 CFR § 101.3

BIA CASES
Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009)
Matter of Cantu, 17 I&N Dec. 190 (BIA 1978, A.G. 1978)
Matter of M--, 3 I&N Dec. 850 (BIA 1950)

FEDERAL CASES
Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005)
Scales v. INS, 232 F.3d 1159 (9th Cir. 2000)
Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005)

From Joren Lyons

CITATION
Definition of good moral character, please see here.
Regulatory authority for good moral character determinations:
8 CFR 316.10
One-year period of good moral character needed for certain military veterans:
8 CFR 329.2(d)

From Saher J. Macarius

Citation: Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. 2004), this case recognizes that part of the day is a day. It was related to a cancellation of claim; however, the language is great for calculating physical presence as well.



Citations for ILW.COM's Seminar US Tax Compliance

From Lowell G. Hancock

The federal tax residency rules are contained in (USC Title 26) Internal Revenue Code section 7701(b), and the Treasury Regulations thereunder (26 CFR 301.7701(b)-0, et seq).

The FICA tax exemption for individuals in F-1, J-1, M-1, Q-1, and Q-2 nonimmigrant status is contained in USC Title 26 Internal Revenue Code section 3121(b)(19), and the Treasury Regulations thereunder (26 CFR 31.3121(b)(19)-1) .

The complete texts of the U.S. income tax treaties may be viewed at:

IRS Tax Treaty Page
http://www.irs.gov/businesses/international/article/0,,id=96739,00.html

Treasury Tax Treaty Page
http://www.ustreas.gov/offices/tax-policy/treaties.shtml

Library of Congress Treaty Page
http://thomas.loc.gov/home/treaties/treaties.html

From Lowell G. Hancock

CITATIONS

The Five Basic Withholding and Reporting Regimes Under U.S. Tax Law

References to the IRC are to the Internal Revenue Code (Title 26 U.S. Code)

References to the Treasury Regulations are to 26 CFR

  • Reporting/Withholding on U.S. Persons (Form 1099 Reporting-IRC Chapter 61)
  • Reporting/Withholding on Foreign Persons Under IRC Chapter 3
  • Backup Reporting/Withholding (pertains only to U.S. Persons)-IRC 3406
  • Wage Reporting/Withholding (pertains to both U.S. & Foreign Persons)-IRC Chapters 21,23,24.
  • Pension Reporting/Withholding (pertains to both U.S. & Foreign Persons)-IRC Chapters 3, 24.
IRC 1441/1442 Withholding on Payments to Foreign Persons

Treas.Reg. 1.1461-1 Reporting Requirements for Forms 1042 / 1042-S

IRC 3401/3404 Withholding Federal Income Tax on Wages

IRC 3405 Special Rules for Withholding on Pensions/Annuities

IRC 3406 Backup Withholding in Cases in Which the Payee Has Failed to Provide His TIN (Taxpayer Identification Number)

IRC 3101-3128 Withholding Social Security / Medicare (FICA) Taxes on Wages

IRC 3301-3311 Employer Liability for U.S. Federal Unemployment (FUTA) Tax on Wages

RELEVANT IRS PUBLICATIONS

  • Pub 15, Circular E, Employer's Tax Guide (rev. 01.2009)
  • Pub 15-T New Wage Withholding and Advance Earned Income Credit Payment Tables (rev. 03.2009)
  • Pub 515 Withholding Tax on Nonresident Aliens and Foreign Entities
  • Pub 519 U.S. Tax Guide for Aliens
  • Pub 901 U.S. Tax Treaties

REFERENCES TO THE IRS WEBSITE

Home Page
www.irs.gov

International Taxpayer
http://www.irs.gov/businesses/small/international/index.html

Tax Withholding on Foreign Persons
http://www.irs.gov/businesses/small/international/article/0,,id=106981,00.html

Taxpayer Identification Numbers
http://www.irs.gov/businesses/small/international/article/0,,id=96696,00.html

IRS Tax Treaty Page
http://www.irs.gov/businesses/international/article/0,,id=96739,00.html

Treasury Tax Treaty Page
http://www.ustreas.gov/offices/tax-policy/treaties.shtml

Taxation of Foreign Athletes and Entertainers
http://www.irs.gov/businesses/small/international/article/0,,id=176173,00.html

Central Withholding Agreements
http://www.irs.gov/businesses/small/international/article/0,,id=106060,00.html

Ask IRS a Question
http://www.irs.gov/help/page/0,,id=133197,00.html

IRS Forms and Publications
http://www.irs.gov/formspubs/index.html



Citations for ILW.COM's Seminar The J Visa and Exchange Program

From Darra Klein

From Darra Klein

From Lynn Shotwell

From Elizabeth Quinn

  • cited to INA 214(b) (nonimmigrant intent)
  • INA 212(e) (two year foreign residence requirement associated w/ certain J-1s)
  • 22 CFR Part 62 generally ,and in particular Sec. 62.11 (re: responsibilities of Responsible Officers and Alternate Responsible Officers)

From Sandra Sheridan

From Lynn Shotwell



Citations for ILW.COM's Seminar Asylum For Experts

From David L. Cleveland

RECENT CASE LAW

Economic harm
In re T-Z-, 24 I&N Dec. 163 (BIA 2007)

"added children"
Lin v. Holder 2009 U.S. App. LEXIS 9757 [4th Cir. 5/16/09]
Zhang v. US Atty. General 2009 U.S. App. LEXIS 14126 [11th Cir. 6/30/09]

Emotional harm
Comollari v. Ashcroft 378 F.3d 694, 697 (7th Cir. 2004)
Ayele v. Holder 564 F.3d 862 (7th Cir. 2009) -do not need physical harm to win

Ostracism: Ceesay v. Mukasey 2008 U.S. App. LEXIS 17734 (2nd Cir. 2008)

"at least one central reason"
Parussimova v. Mukasey 555 F.3d 734 (9th Cir. 2009)

Khan v. Filip 554 F.3d 681 (7th Cir. 2009)
Kholyavskiy v. Mukasey 540 F.3d 555 (7th Cir. 2008)
Haxhiu v. Mukasey 519 F.3d 685 (7th Cir. 2008)

Bromfield v. Mukasey 543 F.3d 1071 (9th Cir. 2008)
Ndayshimiye v. US Attorney General 557 F.3d 124 (3rd Cir. 2009)
Rapheal v. Mukasey 533 F.3d 521 (7th Cir. 2008)

From David L. Cleveland

CASE CITATIONS

Internal relocation
Brezilien v. Holder, 565 F.3d 1163(9th Cir. May 12, 2009) IJ granted asylum. BIA reversed, saying he could be safe outside of Port-au-Prince. Is that improper fact-finding? -there is tension between D-I-M, 24 I&N Dec. 448, 451 [BIA 2008](suggesting that internal relocation is a "fact') and Matter of A-S-B-, 24 I&N Dec. 493, 497 (BIA 2008) {what may happen in the future is a legal determination]

The one-year deadline
April 9th to April 9th: Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009)
Lived in Harrisburg: Oei v. Att'y Gen. 301 Fed. Appx 157 [3rd Cir. 2008]
Waited 364 days: Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008)

April 9th to April 9th: Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009)

April 9th to April 9th: Minasyan v. Mukasey, 553 F.3d 1224 (9th Cir. 2009)

Material support
Matter of L-H- (BIA 7/10/09) Terrorists forced A to hand over a packed lunch and they took $4 from his chest pocket. Held: A did not "commit an act." Also, a lunch and $4 are not "material." They are de minimus.
[available at bibdaily.com]

Unaccompanied alien children [UAC] Memorandum dated March 25, 2009 by Joseph E. Langlois [AILA Document 090-422-30

"safe haven" has been abolished: Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004).

Negusie v. Holder 129 S. Ct. 1159 (March 3, 2009)
Diaz-Zannatta v. Holder 558 F.3d 450, 460 (6th Cir. 2009)

DHS brief dated April 13, 2009 [AILA document 090-716-64]

IJ O'Leary {Arlington VA ] [June 19, 2009] 13-page opinion
IJ Phillip Williams [Balt. MD] June 11, 2009 - 4-page opinion [this 13-year-old boy is a member of the ____ family] Bibdaily: "gang" then "abstracts" then "June 11, 09"

Carrera-Garrido v. Atty Gen 2009 us app lexis 3990 [3rd cir. 2009]
"former United States residents with children" might be a psg; remand!
-the gangs will believe I am rich; because I have children, the gangs will feel they can make me pay

January 14, 2009 decision by IJ Tsankov in Los Angeles [available at uscri.refugees.org at its "Resource Library"]
Respondents were twin sisters, age 19, from El Salvador.
Gang members said: "join us, or we will rape you or kill you."
A psg must be visible; it must be recognized by others. Its membership must be delimited.

Respondents argue they are "female members of a vulnerable family that cannot protect themselves." [pg 26]
Also, they are "attractive twins." Pg 26.
A family is a social group. [pg 27]

They did not suffer physical harm, but they were deprived on a normal childhood. They were forced to change schools, and take expensive taxis. Held: this is past persecution. [comment: S-E-G- not mentioned.]

Informants are not a psg Soriano v. Holder 2009 us app lexis 13822 [9th cir. 6/26/09]
Scatambuli v. Holder, 558 f.3d 53 (1st Cir. 2009)[R lacked social visibility; very few people in society knew he was an informant; he had no outward characteristics that would cause others to recognize him as an informant]

Gang recruitment
Marroquin-Ochoma v. Holder 2009 us app lexis 16714 [8th Cir. 7/28/09] the gang just wanted to fill its ranks; refusal to join a gang is not necessarily politically motivated

From David L. Cleveland

Country conditions
Please see Integrated Regional Information Networks

Assessments
A97-103-163 (BIA Jun 14, 2005).
Please see Removal Proceedings [last visited on July 26, 2009]
AILA document # 080-80461

Krisnawati v. us AG 2009 us app lexis 11728 [11th cir. 6/1/09]
Aboflan v. Holder 2009 us app lexis 16700 [4th cir. 7/29/09]

Federal Rules of Evidence:
Rule 607: Who may impeach
Rule 613 Prior Statements of Witnesses
613(a) "…the statement need not be shown nor its contents disclosed to the witness at that time, but on the request the same shall be shown or disclosed to opposing counsel."

Letter from Embassy in Yaounde
Amin v. Mukasey 535 F.3d 243 [4th Cir 2008]

Memorandum from
Bo Cooper, INS General Counsel, to Jeffrey Weiss, INS Director of Int'l Affairs, Confidentiality of Asylum Applications and Overseas Verification of Documents.

Application Information (June 21, 2001) ("Cooper Memo"), available at
http://judiciary.house.gov/legacy/82238.pdf at 39-45; U.S. Citizenship and Immigration Services,

Fact Sheet: Federal Regulations Protecting the Confidentiality of Asylum Applicants (June 3, 2005) ("Fact Sheet"), available at
http://www.uscis.gov/files/pressrelease/FctSheetConf061505.pdf

Secret evidence Kaur v. Holder 561 F.3d 957 (9th Cir. 2009)
8 CFR § 1240.33 (c )(4)

Emotional harm
Ayele v. Holder 564 F.3d 862 (7th Cir. 2009) -do not need physical harm to win

At least one central reason
Parussimova v. Mukasey 555 F.3d 734 (9th Cir. 2009)

Domestic violence : April 13, 2009 DHS brief AILA doc #090-716-64
"Mexican women in domestic relationships who are unable to leave" is better than "women in abusive domestic relationships who are unable to leave"

how to overcome S-E-G- 24 I&N Dec.579 (BIA 2008)
Mtr granted on 7/28/09 In re Gonzales-Mira
But see: Mendez-de Vasquez v. US Att'y General, 2009 U.S. App. LEXIS 20087 (11th Cir. 9/8/09)

Vasquez v. Holder, 2009 U.S. App. LEXIS 19034 (2nd Cir. 8/25/09)

Scatambuli v. Holder, 558 F.3d 53 (1st Cir. 2009)[R lacked social visibility; very few people in society knew he was an informant; he had no outward characteristics that would cause others to recognize him as an informant]

Gatimi v. Holder 2009 U.S. App. LEXIS 18718(7th Cir. 2009)

can you be a member of more than one psg? "dental student who dated, and then escaped" Gomez-Zuluaga v. Attorney General, 527 F.3d 330 (3rd Cir. 2008)

Duress: Negusie v. Holder 129 S. Ct. 1159 (2009)
Melendez-Diaz v. Massachusetts 129 S. Ct. 2527 (2009)



Citations for ILW.COM's Seminar Asylum For Beginners

From Ally Bolour

Razkane v. Holder 562 F.3d 1283 (10th Cir. 2008)

In re Y-T-L, 23 I & N Dec. 601, BIA 2003

In re S-A-K and H-A-H, 24 I&N Dec. 464 (BIA 2008)

Toure v Ashcroft, 400 F3d 44 (1st Cir. 2005)

Bah v Mukasey, 281 Fed Appx 26 (2nd Cir. 2008)

Moshud v Blackman, 68 Fed Appx 328, 2003 WL 21404334 (3rd Cir June 18, 2003)

In re A-T, 24 I & N Dec. 296 (BIA 2007) aka Traore v Mukasy, No. 07-2080 (4th Cir filed Nov 1, 2007)

Niang v Gonzales, 492 F3d 505 (4th Cir 2007)

Abay v Ashcroft, 368 F3d 634 (6th Cir 2004)

Agbor v Gonzales, 487 F3d 499 (7th Cir 2007)

Hassan v Gonzales, 484 F3d 513 (8th Cir 2007)

Mohammed v Gonzales, 400 F.3d 785 (9th Cir. 2005)

Niang v Gonzales, 422 F3d 1187 (10th Cir 2005)

S-E-G, 24 I&N Dec. 579 (BIA 2008)

Rojas-Ayala v Holder, 316 Fed Appx 621 (C.A. 9, 2009)

Santos-Lemus v Mukasy, 542 F3d 738 (C.A. 9, 2008)

Donchev v Mukasy, 553 F3d 1206 (C.A. 9, 2009)

Soriano v Holder, 569 F3d 1162 (C.A. 9, 2009)



Citations for ILW.COM's Seminar Family Immigration For Beginners

From Douglas Hauer

QUESTION

  1. If the petitioner is from Mexican who married a US citizen, can request a B2 visa prior to submitting the I-130 petition?
  2. How plausible is it for a Mexican to receive a B2 visa, and how long is the wait period?
  3. How long will the wait period for a I-130 to be approved, or where can I find such information?

ANSWERS

  1. First, to obtain a B-1 or B-2 visa, an individual must satisfy a U.S. consular official that he will return to his home country after a brief stay in the United States as a business visitor or tourist. This applies to all B-1 and B-2 visa applicants irrespective of where his family members may reside. The applicant has the burden of proving substantial ties to his home country in the process. In countries with less than ideal social and economic situations, consular officials know that many B-1 and B-2 visa applicants will not return to the home country. Therefore, consular officials deny many B-1 and B-2 visa applications in certain countries (e.g., China, India and Mexico) because they know that based on statistics, many people will not return and will overstay their visas and work illegally in the U.S.
  2. Second, a B-1 or B-2 visa applicant who has a U.S. citizen fiancé or spouse who is residing in the U.S. is not precluded from temporary visits to the United States. However, obtaining the visa is difficult in many cases. An immediate family member or fiancé in the U.S. would be a reason for the applicant to stay in the U.S. On the one hand, an applicant who is truly intending to enter the U.S. with a B-1 or B-2 visa for a brief period, and who will then depart the U.S. and return to the home country and eventually complete immigrant visa processing at a U.S. Embassy or Consulate, may have a stronger case to make for the visa to be issued if there is a specific reason to visit the U.S. and a fixed departure date from the U.S. On the other hand, a B-1 or B-2 visa applicant who appears to a consular official to have the fixed intention to immigrate to the U.S. and no good reason to return to his home country will likely be denied a visa under Section 214(b). In such an instance, the consular official would instruct the applicant to obtain an immigrant visa. Consular officials use INA Section 214(b) as a basis to deny even the most qualified applicants, and your client’s ability to secure a visa depends on his facts and on the strength of his ties to Mexico.
  3. Third, credibility of the applicant is the most important “rule” for an attorney to explain to a client. An attorney must be clear with his or her client that the client must be honest and disclose true and accurate information in the visa process. Even a silence could be construed as a misrepresentation under INA Section 212(a)(6)(C). For example, Form DS-160 and 156 ask the applicant whether a spouse or fiancé resides in the U.S. The applicant must also disclose the status of the relative or fiancé. The failure to disclose this information on the form is a huge problem for an applicant who has a fiancé or spouse in the U.S. Failing to disclose information to obtain a visa could result in a later finding of inadmissibility under the fraud and misrepresentation provisions of INA Section 212(a)(6)(C).
  4. Finally, an attorney may not counsel a client to lie on an application, nor may an attorney tell a client to obtain a B-2 visa in order to enter the U.S. to have a green card process (I-130/I-485) commenced. As an attorney, be sure that you are giving 100% clear advice to your client with respect to the importance of disclosing relevant facts in the visa application process. Specifically, your client needs to understand that one may not apply for a B-2 visa, and then use that visa for the purpose of entering the U.S. to adjust status by filing a Form I-485.

Filing an I-130 alone is permissible before or after a B-2 visa is issued to your client, but the I-130 should be filed with your client having the good faith intention to leave the U.S. after a brief lawful stay in B-2 status to return to Mexico to complete the immigrant visa process.

From Maria Frenn Kallmeyer

  • INA § 101(a)35
  • INA § 101(b)1
  • INA § 101(b)2
  • Matter of Lovo, 23 I&N Dec. 746
  • Defense of Marriage Act, PL 104-199, 110 Stat. 2419 (1996)

From Eileen Morrison

Categories of Family- Based Immigration

US Citizens and Lawful Permanent Residents may sponsor certain groups of family members.

A. Immediate relatives are not subject to numerical limits OR per country limits (INA 201 (b)(2)(A)(i))

Immediate relatives come in four flavors and they all involve family relationships with US citizens:

  1. Spouse of US citizen
  2. Unmarried child under 21 years of age of US citizen
  3. Parents of US citizen over age 21
  4. Spouses of deceased US citizens married for at least two years at the time of the death of the US citizen spouse.

Family Preference Categories (Limited to 480,000 per year worldwide less the number of immediate relatives in the prior year together with the Number of people paroled into the US on humanitarian grounds during the second preceding fiscal year plus the number of unused employment based visas in the preceding year (INA section 201(c)

First: Unmarried Sons and Daughters of US citizens: 23,400, plus any number not required for 4th preference;

Second: Spouses, Unmarried Children under 21 years of age and Unmarried Sons and Daughters of US permanent residents (green card holders): 114,2000 plus any unused 1st preference numbers

2a: 77% of overall second preference limitation, of which 75% are exempt from the per-country limit;

2b: Unmarried Sons and Daughters of US permanent residents, 23% of the overall second preference limitation;

Third: Married Sons and Daughters of US citizens: 23,400, plus any numbers not required by first and second preferences;

Fourth: Brothers and Sisters of US citizens over 21 years of age: 65,000, plus any numbers not required by the first 3 preferences.

NEVER GRANDPARENTS, aunts or uncles or married children of US permanent residents. If someone has a pending I-130 as the unmarried son or daughter of a US permanent resident and then marries, the petition is automatically revoked.

Child: unmarried children under age 21. Son or daughter may be over 21. Stepchildren if relationship created prior to child attaining 18 years of age.

Reading the visa bulletin:

Download at www.travel.state.gov. Type in "Visa Bulletin August 2009" and you'll be able to download the visa bulletin, which consolidates family, business and diversity lottery information.

Page 1 has the various FB categories described. Page 2 has the family-based visa bulletin categories. You're looking for the spouse of a green card holder. Currently processing cases filed on or before January 15, 2005 for the world-wide preference. If you are from Mexico, however, the priority date is September 22, 2002.

FB categories get backlogged based on demand. No more than 7% of total annual immigration may be from any one country. So high rates of immigration on the family or business side produces future family immigration numbers.

Completing and documenting form I-130, Petition for Alien Relative

I always have the petitioner and beneficiary complete this in draft. If there are untruthful answers provided, you want to show that the attorney was not responsible for them.

Form I-130 is mostly biographical information.

One thing to watch out for is someone who got their permanent residence status through marriage to a US citizen if the marriage ended in divorce. IF the marriage was long-term, nothing to worry about. But USCIS will be on the lookout for serial petitioners because they may suspect marriage fraud.

If the applicant is in the United States and entered without inspection be careful - three and ten year bars. Want to make sure that you aren't turning someone into the government that you can't ultimately adjust or visa process.

Also in a marriage case be careful if the marriage took place while the beneficiary spouse was in proceedings.

#17 - spouse and children of the relative being sponsored. Don't want to leave someone off and then try to immigration them later.

Documenting the Form I-130:

G-28 on file signed by petitioner.

Proof of the petitioner's US citizenship by birth or naturalization. Proof of the petitioner's LPR status - copy of resident alien card.or htepassport stamp and personal information page from the passport;

Proof of family relationship is the Beneficiary is a spouse:

  1. Marriage certificate showing petition was married to the child's other parent (if applicable) and translation
  2. Final divorce decree if applicable
  3. Passport-style photo of the petitioner and beneficiary
  4. A signed G-325A for the petitioner and the beneficiary
  5. documentation showing joint ownership of real estate
  6. Copy of joint bank account
  7. Copy of joint lease or a letter from the landlord confirming that both spouses reside at the same address
  8. 401K beneficiary forms
  9. Copy of joint health insurance
  10. Copy of car insurance showing each is insured to drive the other's car
  11. Copy of life insurance beneficiary forms
  12. Joint ownership of a vehicle
  13. Joint credit card bills, cell phone bills, electric bills, gas bills, etc. bearing their residential address
  14. Birth certificates of children both to the marriage
  15. Affidavits from those with personal knowledge of the bona fides of the relationship (try to avoid needing to go that far).

If child and petitioner is the mother:

Copy of the child's birth certificate showing the name of the mother and the child, date and place of birth

If child and the petitioner is the father:

Copy of the child's birth certificate showing the petitioner is the father, the child's name and date and place of birth

Copy of the marriage certificate showing the parents were married to one another

If the petition is for a child who is born out of wedlock and petitioner is the father.

If the child was NOT legitimated before reaching age 18, must show evidence of the parent-child relationship existed between the father and the child before the child reached age 21. Letters, visits, evidence of support, lived with the child, and otherwise showed interested in the child's welfare.

Brother or sister:

A copy of the petitioner's birth certificate and the beneficiary's birth certificate showing at least one parent in common. If there are different mothers but the fathers are the same, submit copies of he marriage certificates of the father to each mother and show the proof of legal termination of the prior marriage(s) (final divorce decree, annulment, death certificate).

Mother:

Copy of petitioner's birth certificate showing the mother's name and the petitioner's name, date and place of birth.

Father:
Copy of petitioner's birth certificate showing the father's and mother's names and the petitioner's name, date and place of birth. And copyd of parents' marriage certificate and if there were prior marriages that they were terminated legally.

Adoptive parent or adoptive child:

Show adoption decree prior to attaining age 16 and proof that the child was in the legal custody of and resided with the parent who adopted him or her for at least two years before or after adoption.

Stepparent/Stepchild:

Proof of the marriage certificate of stepparent to the child's natural parent and showing the marriage occurred before the child was 18, and proof of prior marriage termination and copy of steppchild's birth certificate showing the natural parent and the child's names.

Where to find civil documents by country:

http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3272.html

Where to file a standalone I-130?

File the I-130 form with check payable to the Department of Homeland Security for $355 stapled to the G-28.

Use overnight mail.

If your petitioner lives in the West:

USCIS
P.O. Box 804625
Chicago, IL 60680-4107

If your petitioner lives in the East:

USCIS
P.O. Box 804616
Chicago, IL 60680-4107

If you're filing to adjust:

USCIS
P.O. Box 805887
Chicago, IL 60680-4107

Courier/Fedex

USCIS
Attn: FBAS
131 South Dearborn - 3rd floor
Chicago, IL 60603-5517

Petitioner's living in Canada file at Vermont Service Center or at nearly US embassy or consulate.

Adam Walsh Act:

Both petitioners and beneficiary undergo security checks. A petitioner will not be able to sponsor a family-based petition unless the Secretary of Homeland Security exercises his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.

Any person convicted of sex offenses against a minor - including kidnapping (except parental kidnapping), solicitation to engage in sexual conduct, possession, production or distribution of child pornography; video voyeurism, solicitation to practice prostitution or sexual performance, etc.

Grounds of Exclusion:

These are reasons people would not be allowed to immigrate to the US. In some instances, a waiver of the ground of exclusion is possible. In others, the prospective immigrant will be disqualified from immigrating to the US.

  • Membership in the Communist party
  • Persecution of others
  • Having been deported from the US
  • Leaving the US to avoid being drafted into the US Armed Forces
  • Criminal convictions, even if pardoned
  • Asserting diplomatic immunity
  • Knowingly committed any drug-related offense or crime of moral turpitude for which you have not been arrested
  • Engaging in illegal gambling
  • Helping someone enter the US illegally
  • Selling or helping others to sell illegal drugs
  • Withholding custody of a US citizen child outside the US from a person granted custody of the child
  • Intending to engage in spying, sabotage, intending to overthrow the US government
  • Health (certain disabilities, insufficient immunizations, addictions, infectious diseases, etc.)
  • Inability to support oneself

From Jim Alexander

Adoption INA Section 101(b)(1)(E)

A child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or Subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a child described in clause (i) or subparagraph F(i); (II) was adopted by the adoptive parent or parents of the sibling described in such clause or subparagraph; and (III) is otherwise described in clause (i), except that the child was adopted while under the age of 18 years.

Nunc pro tunc adoptions not valid for immigration purposes. See Matter of Carriaga, 15 I. & N. Dec. 716 (BIA 1976)

Adoptions under the Hague Convention - See 101(b)(1)(F)

Automatic revocation of immigrant petitions - 8 C.F.R. Section 205.1 Reinstatement based upon humanitarian reasons - 8 C.F.R. Section 205.1(a)(3)(i)(C)(2). To determine whether the individual has a relative who could serve as substitute sponsor, go to INA Section 213(A)(f)(B)

Validity of I-130 even though couple is living apart. Matter of McKee, 17 I.&N. Dec. 332 (BIA 1980)

From Kelly McCown

  • Neufeld Memorandum, I-751 Filed Prior to Termination of Marriage (April 3, 2009) AILA Infonet Doc. No. 09072166 (posted 7/21/2009)
  • AILA/SCOPS Practice Pointer: I-751 Filing and Adjudicating Procedures for Parties Separated but Not Yet Divorced, InfoNet Doc. No. 09092883 (posted Sep. 28, 2009)
  • Matter of Lovo Lara 23 I&N Dec. 746 (BIA 2005) (transsexual marriage valid under the INA, despite DOMA)

From Michele Vakili

  • Matter of Lenning, 17 I&N Dec. 476 (BIA 1980) (holding a legal separation is sufficient to terminate a marriage for immigration purposes)
  • VAWA, Violence Against Women Act (Battered spouses/children or subject to extreme mental cruelty), 8 CFR sec. 204.1(a)(2)(3); INA sec 204(a)(1)(A)
  • Conditional Residents: INA sec. 216(a)(1); 8 CFR sec. 216.1



Citations for ILW.COM's Seminar Students: F, J, and M

From Steve Springer

I. Introduction to F, J, and M Classifications

A. Overview of F, J, and M student classifications

  1. F-1 students
  2. In short, academic students. 101(a)(15)(F)(i) defines as "an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study . . . at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States.

  3. M-1 students
  4. In short, vocational/non-academic students. INA 101(a)(15)(M)(i) defines as "an alien having a residence in a foreign country which he has no intention of abandoning who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study at an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States . . ." "Other nonacademic institutions" might include culinary school, technical school, etc. Also, many community colleges offering vo-tech tracks use M-1.

  5. J-1 students
  6. In short, exchange/sponsored students. 22 CFR 62.23(c) requires that student's program financed by a government or international agency, carried out pursuant to agreement between U.S. and foreign government, carried out pursuant to written agreement between governments and/or institutions, or funded substantially by other than personal/family funds.

J category created by Fulbright-Hayes Act of 1961 "to increase mutual understanding between the people of the U.S. and the people of other countries by means of educational and cultural exchanges.

INA 101(a)(15)(J) defines as "an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student . . . who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of studying . . ."

B. Players and roles (ICE/SEVP, USCIS, DOS, attorneys, Designated School Officials, and Responsible Officers)

DHS-U. S. Immigration and Customs Enforcement, especially Student and Exchange Visitor Program (SEVP): writes F/M regs. and enforces them and laws (inc. sanctions,withdrawal of authorization), adjudicates I-17 (app. for F/M program), manages Student and Exchange Visitor Information System (SEVIS).

DHS-U. S. Customs and Border Protection inspects students at POE.

DHS-U.S. Citizenship & Immigration Services adjudicates some benefits/applications, like OPT and reinstatement for Fs

Dept. of State: writes J regs., designates J programs (although app. submitted through SEVIS), and issues visas

Designated School Official: programs approved to host Fs/Ms designate one Principle DSO (primary DHS contact) and up to 9 DSOs, who handle many functions in SEVIS, approve certain benefits for students (and many advise students, though some may be in Admissions, etc.), ensures school compliance, keeps records, etc.

Responsible Officers and Alternate Responsible Officers (corollary to DSO for J programs): schools approved to host Js designate one RO and up to 9 AROs, who handle many functions in SEVIS, approves certain benefits for students (and many advise students, though some may be in Admissions, etc.), ensures school compliance, keeps records, etc.

Attorneys: May advise students about matters such as COS (for example, to H-1B) or LPR process, may be consulted by students who need reinstatement, may be asked by schools or DSOs for advice or information, may be hired to establish F, J, M programs for institutions.

C. Institutional responsibilities

Don't be surprised to find DSOs and ROs very protective of their programs. Keep in mind that, in addition to realizing that their FJM programs are valuable to their institutions, they realize that they are under much greater (and largely misplaced) agency scrutiny since 9/11.

1. Duties of DSO and RO, institutional responsibilities, sanctions and de-certification

  1. For F-1 programs and M-1 programs
    1. Extensive DSO and institutional responsibilities, including reporting requirements and record-keeping requirements, set out at 8 CFR 214.3
    2. Grounds for withdrawal of school approval to issue I-20s (host F-1/M-1 students) set out at 8 CFR 214.4. Include some specific violations, like "willful issuance of a false statement" in connection with a transfer or employment application or failure to meet reporting requirements, and general ones like "any conduct on the part of the designated school official which does not comply with the regulations" (see 8 CFR 214.4(a)(1)).
    3. SEVP is supposed to review school approval every two years (8 CFR 214.3(h)(3)), has stated plans for extensive upcoming recertification project, which has been delayed a couple of times. Most recent indication from SEVP is that recertification will coincide with implementation of SEVIS II scheduled for 2010.
    4. Answer to common question from DSOs and others: No specific penalties to institution for students' failure to maintain status, but ICE/SEVP could consider-in periodic "re-certification" or otherwise-unusually large numbers, frequent occurrences, or patterns to constitute a violation of one of the very general grounds for withdrawal of school approval.

  2. For J-1 programs

  1. Extensive RO and institutional responsibilities, including "monitoring," reporting, and record-keeping requirements, set out at 22 CFR 62.72 and 22 CFR 62.2-22 CFR 62.15
  2. Grounds for sanctions and revocations of school approval to host EVs set out at 22 CFR 62.50 (recently expanded -- 72 Fed. Reg. 72245 (December 20, 2007), to include broad violations such as "bringing disrepute to the EV program")
  3. Sponsors are approved for a specific period, re-designation is periodically required, and DOS considers a variety of program transactions, possibly including reinstatements/corrections
  4. No specific penalties to institution for students' failure to maintain status, but could consider unusual number of reinstatements indicative of a failure to properly advise EVs or even "bringing disrepute" (see 67 Fed.Reg. 76256, 76265 (Dec. 11, 2002) supp.)

II. What you need to know about SEVIS and SEVIS reporting (an overview and update)

  1. Primarily it is just a database that is supposed to assist in the checks and balances of complying with the F, J and M regulations written in 8 and 22 CFR. Dispite popular myth, SEVIS was not born out of the ashes of 9/11 (it started in the early 1990s after the 1st World Trade Center and then the CIA headquarters bombings) and the regulations published to created SEVIS did not change 90% of the F-1 regulations, they simply changed the system for recording and storing the student data. New F regulations will be published soon (by Fall 2009) and these would be the first substantial change in F regulations in over a decade. Also the database SEVIS will be changing with in the year to SEVIS II, but it might as well be called "Chuck" as it has very little relation to current SEVIS. Entire concepts will change - becoming entirely paperless.
  2. Each SEVIS type is distinctly different, and has it's own set of CFR regulations (M and F in 8 CFR, J in 22 CFR)
  3. The F-1 regulations are very regimented as it gives micro-focus to the operations of a school (admissions, registrar, comenscement) and checks on students each semester. The J regulations are more supportive of exchange and reflect the spirit of the Department of State, which writes the J regulations.

  4. Designated School Officials and Responsible Officers ( F and J approved by DHS) are given DHS discretion in how they manage their SEVIS programs within the law. Some differences:
  5. Big School- Small School (batch and non batch) School culture or mission (music school, community college, large reliance on international post-docs, etc…)

  6. Database functionality v.s. regulations. For example:
  7. New J-1student gets DS-2019, gets visa at embassy, then requests J-2 visa documents for family. NOT POSSIBLE. The SEVIS database screen (left-hand navigation) lists "actions" or options to affect each record the advisor is looking up. This list of options expands and contracts from a long list to a very short list depending on the "state" of that particular SEVIS student record. If the action (such as adding a family member as J-2 dependent) is not on the list - you can't do it, even if it is permissible w/in the law/ CFR. Subject to 2-yr home res. If one school marks this in SEVIS and the scholar continues career at other schools - all other visa documents will have the "subject" on the DS-2019 form - even if it was an error. Student drops out of school and SEVIS record is terminated by school. Student travels and returns to US on old Form I-20. CBP issues I-94 card F-1 DS since on paper I-20 is valid.

  8. Event Reporting and Discretion
  9. Some schools spend more time verifying facts before taking an action in SEVIS that may not be reversible. E.G. the advisor gets an e-mail from the school registrar that the student dropped a class in law school. They are not supposed to drop until the advisor is able to review and amend the SEVIS record. Is the student "out of status". Some DSO's would check the facts, and sometimes it is found that the student is not out of status (they registered for a new class at the medical school campus to make up for the dropped law school class.)

III. An examination of the F classification, including maintenance of status, changes in program (extension, transfer, change of level, etc.), and reinstatement

A. Maintenance of status

Two places to look for requirements: "General requirements" for "nonimmigrant classes" at 8 CFR 214.1, "special requirements" for students at 8 CFR 214.2(f)

(Fs and Js admitted to U.S. for "D/S" rather than for a specific period-we'll discuss in detail later)

"Duration of status" is defined as "the time during which an F-1 student is pursuing a full course of study . . . or engaging in authorized practical training following completion of studies . . . The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study." 8 CFR 214.2(f)(5)(i)

1. Take a full course of study (may pursue a degree or "specific educational objective"), except during annual vacation or OPT/CPT 8 CFR 214.2(f)(6)(i)
  1. For graduate students, as determined by DSO (institution)
  2. For college/university undergraduates, at least 12 hours per term, unless last term or authorized for reduced course load)
  3. For study at other degree-conferring institutions, 12 hours of instruction per week
  4. For ESL students (and some other training programs) at least 18 clock hours per week
  5. For elementary/high school, not less than the minimum prescribed by the school for normal progress

--EXCEPTIONS: DSO may authorize-in advance (via SEVIS)-reduction in course load due to illness or medical condition, initial difficulty with English language/reading requirements, unfamiliarity with American teaching methods, improper course level placement, in final term to complete course of study. Also, DSO may authorize RCL for border commuter student "provided that the reduced course load is consistent with the border commuter student's approved course of study) 8 CFR 214.2(f)(18)(ii)

2. Make normal progress (not defined in regs.)

3. Refrain from unauthorized employment 8 CFR 214.1(e)

4. Avoid criminal convictions (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)

5. Do not willfully fail to provide full and truthful information requested by the Service 8 CFR 214.1(f)

6. Meet the variety of applicable SEVIS reporting requirements, too (report to DSO no later than 30 days after program start date, notify DSO of change of address within 10 days, etc.) --DSO can request SEVIS Help Desk to correct some SEVIS record problems (see "I-20 User Manual" at www.ice.gov/sevis)

B. Changes in Program

--Extensions, changes of educational level at same school, and transfers from one school to another are accomplished by DSO(s) in SEVIS (no app. to USCIS)

1. Extensions: Student must "apply" to DSO prior to "program end date" (on I-20), DSO must "certify" that student has continually maintained status and that delays are caused by compelling academic or medical reasons (and gives examples such as change of major) and update SEVIS record prior to I-20 expiration. Remember, students must be making "normal progress" to maintain status, so don't be surprised if DSOs refuse to authorize extensions for students not progressing. New I-20 issued.

8 CFR 124.2(f)(7)

2. Changes of level: (such as master's to Ph.D.) accomplished by DSO through SEVIS "according to transfer procedures outlined in paragraph (f)(8)."New I-20 issued. 8 CFR 124.2(f)(5)(ii)

3. Transfers from one school to another: student who is maintaining status may transfer to another school, begin new program within 5 months of transfer-out date or completion date on current I-20 (whichever is earlier), and transfer-out/transfer-in DSOs coordinate transfer of student's SEVIS record in SEVIS. New I-20 issued. 8 CFR 124.2(f)(8)

C. Reinstatement

1. Criteria

"The district director [note: reg. inaccruate/out-of-date, does not reflect current process of filing at SC] may consider reinstating a student who makes a request for reinstatement on Form I-539 . . . accompanied by a properly completed SEVIS Form I-20 indicating the DSO's recommendation for reinstatement . . . The district director may consider granting the request if the student (8 CFR 214.2(f)(16)):

  1. Has not been out of status for more than 5 months at time of filing or failure to file within the 5 month period was the result of exceptional circumstances
  2. Does not have a record of repeated or willful violations
  3. Is currently pursuing/intending to pursue full course of study
  4. d. Has not engaged in unauthorized employment;
  5. Is not deportable on any ground other than section 237(a)(1)(B) [Present in violation of law] or (C)(i) [Nonimmigrant status violators] of the Act; and

i. The violation of status resulted from circumstances beyond the student's control (serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO . . .), or

ii. The violation relates to a reduction in the student's course load that would have been within a DSO's power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.

So, there are two standards, one (beyond control) for all violations except RCL for which the standard is "extreme hardship"

2. Process

Prior to 2006, applications filed at district office and adjudicated by "schools officer," then filed at district office and forwarded to CSC or VSC, now filed directly by applicant at CSC or VSC

a. DSO issues from SEVIS a new I-20 with notation "reinstatement requested"

b. Student files I-539 at either CSC or VSC, depending on state in which "school you plan to attend" is located, and includes $300 filing fee, original I-94, reinstatement I-20, letter describing eligibility, financial documents, letter from DSO recommending reinstatement and corroborating student's account (optional but can be helpful)

c. If the Service approves, it stamps I-20, issues approval notice with new I-94, sends both to student, and updates SEVIS record

d. Reinstatement in practice:

i. Shifting jurisdiction from DO and "schools officer" known to DSOs and some attorneys to CSC and VSC caused consternation and has made chances of success more difficult to predict

ii. But common experience is that USCIS does not interpret "beyond the student's control" exclusively as "serious injury or illness, closure of the institution, a natural disaster" as reg. might suggest

iii) For violations RCL violations that would have been authorized by DSO, showing loss of opportunity to continue studies usually suffices as "extreme hardship"

iv) Usually, if the now-unauthorized employment would have been authorized had student not fallen out of status, it will not cause denial (such as continuing assistantship during unauthorized RCL), but if the violation of status was unauthorized employment, reinstatement probably not possible per the reg.

v) Most likely approvals are in situations of DSO error or oversight

vi) In all cases DSO letter can be very helpful (under prior process, schools officers at district offices said DSO letter was most important evidence)

vii) Remember that, since violations of status do not trigger 222(g) and 212(a)(9)(B) [no 222(g) visa cancel.], departure and re- entry to establish status is often a good alternative to reinstatement

--If Canada/Mexico - get new I-94! - and this means student needs to be prepared to discuss status problem and plans to avoid future violations, and attorney should carefully review 8 CFR 214.1(b) (no indication that maintenance of status required for auto-reval) and 22 CFR 41.112(d)(2)(iii) (indicates auto-reval not available if applicant has not maintained status)

--Also, if student is exiting/re-entering U.S. to re-establish status, and visa is expired and new one required, remember that DS-156 asks "have you ever violated the terms of a visa," so must be prepared to discuss

viii) Denial of reinstatement triggers 222(g) and 212(a)(9)(B), and particularly male students from predominantly Muslim countries may be picked up, others NTA'd eventually (sometimes years later) -- you will have to educate judge to get reinstatement in proceedings

ix) Careful and informed decision required

x) Reinstatement re-starts practical training clock

IV. An examination of the J classification, including maintenance of status, changes in program of study (extension, transfer, change of level, etc.), and reinstatement

A. Maintenance of status

The Exchange Visitor program provides a variety of categories, such as college/university students, professors and research scholars, short-term scholars, specialists, trainees, interns, foreign medical graduates, etc. and requirements for maintenance of status vary among them.

1. General requirements:

a. Maintain health insurance meeting DOS requirements

b. Refrain from unauthorized employment

c. Avoid criminal convictions (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)

d. Do not willfully fail to provide full and truthful information requested by Service 8 CFR 214.1(f))

e. Also subject to a variety of SEVIS reporting requirements, too (report to Responsible Officer (RO no later than 30 days after program start date, notify RO of change of address within 10 days, etc.)

- Help Desk is a resource to correct SEVIS issues

2. Examples of category-specific requirements:

a. College and university students: pursue a full course of study as defined by the institution, except during annual vacation or academic training or unless authorized for reduced course load

b. Student Intern category: Rule published July 21, 2008, but SEVIS functionality did not catch up until February 20, 2009. Although EV sponsors who were approved for the Student category were automatically approved to issue under the Student Intern category, the category has more in common with the privately sponsored Trainee/Intern categories than with students. Universities are still evaluating how to use this category, if they use it at all.

c. Professors and research scholars: pursue the teaching, research, observation or consulting activities described on the DS-2019 at the location noted, and do not hold a tenure-track position

B. Changes in Program

1. Changes in Program of Study: One aspect of J-1 program that is unique is the concept that one is admitted to complete a defined objective. Changes between categories, with the sole exception of the Professor/Research Scholar categories, require the approval of the DOS, which is very seldom granted and only when "necessary due to unusual or exceptional circumstances." 22 C.F.R. § 62.41(a).

2. Change in Degree Level is called "Matriculation" in SEVIS, and not all types of matriculation between levels is possible (for example, between secondary school and post-secondary program). Changes in major must be carefully considered, particularly where government funding is involved (i.e. Would the foreign government who funded the student's engineering program approve of a change of major to fashion merchandising?)

3. Transfer between programs: Similar issues surround a transfer from one program to another. The principal underlying question is again whether the original objective will remain unchanged. Must remain in same J-1 category. Procedural issues can occasionally be an issue, however this is entirely the domain of ROs at the individual program sites. See 22 C.F.R. § 62.42 ; § 62.76.

4. Program Extensions: Program extensions can be performed by the RO if within the category's maximum duration. There is no maximum duration for student categories, however student must maintain full time enrollment throughout duration of extension in order to maintain status. Other categories do have maximum durations, and there is a procedure in place to request additional time from the Department of State. See 22 C.F.R. § 62.43(c) for details.

1) Effect of waiver of INA § 212(e) on extension eligibility: While not stated in the regulations, DOS has articulated that program extensions are not possible after a favorable waiver recommendation. See 9 FAM 41.62 N10.2

C. Correcting the Record and Reinstatement

1. Correcting the record

Some minor or technical infractions may be remedied by the Responsible Officer or an Alternate Responsible Officer of the institution's J-1 program through a correction of the SEVIS record 22 CFR 62.45(b),(c), and (d)

a. Technical/minor violations listed at 22 CFR 62.45(c)(1), include, for a period of no more than 120 days:

1) failure to extend the Form DS-2019 in a timely manner,

2) failure on the part of the exchange visitor to conclude a transfer of program prior to the end date on the current Form DS-2019,

3) failure to receive RO approval before accepting an honorarium or other type of payment for engaging in a normally approvable and appropriate activity

b. RO corrects record by issuing a Form DS-2019 with "correct the record" notation or, in the case of honorarium, by giving EV an authorization letter

2. Reinstatement

a. For substantive violations, reinstatement is required.

1) Substantive violations include continuing a "correctable" failure to maintain status for more that 120 days, and failure to maintain a full course of study

a) Must show failure to maintain valid program status was due to circumstances beyond the control of EV or due to administrative delay or oversight, inadvertence, or excusable neglect on the part of RO or EV, and must show unusual hardship would result if reinstatement not granted

b. For a variety of violations, reinstatement is not available, including:

1) knowingly or willfully failing to maintain health insurance

2) engaging in unauthorized employment

3) suspension or termination from EV program

4) continuing a "correctable" or "reinstatable" violation of status for more than 270 days

5) failure to pay SEVIS (I-901) fee

Reinstatement is also not available to those who have received a favorable recommendation from DOS on waiver of home residence requirement

c. Reinstatement process requires submission of reinstatement request by RO through SEVIS, payment of $246.00 fee through pay.gov, and then submission of supporting documents including letter from RO to DOS Office of Exchange Coordination and Designation. When DOS approves, RO can issue new DS-2019 to EV through SEVIS.

V. The Two Year Home Residency Requirement

A. One becomes subject to INA § 212(e) in three circumstances:

1. Received funding from either the foreign or U.S. government. See 22 C.F.R. § 62.2. There is a distinction between direct and indirect government funding. Direct funding will make one subject to 212(e). In the case of indirect funding, that funding must have been for the purpose of promoting international educational and cultural exchange.

2. Skills list:

Clarification from Audio Seminar: When a country has been removed in a newer version of the skills list, that individual is no longer subject to 212(e). However, if the country remains on the skills list, but the individual skill is no longer on the new version of the skills list, that does NOT relieve the individual's 212(e) obligation under the prior list. Therefore from a practitioner's standpoint, if the country no longer appears on the most recent skills list, no further review is necessary and your client is no longer subject. However where a country still appears on the skills list, you must go back to the Skills List that applied at the time the program began. See AILA Doc. 09080362 and 09070767.

1984 Skills List: http://www.state.gov/documents/organization/87381.pdf

1997 Skills List: http://exchanges.state.gov/jexchanges/docs/skills_list.pdf

2009 Skills List: http://edocket.access.gpo.gov/2009/pdf/E9-9657.pdf

3. Graduate Medical Education or Training

B. Effect of being subject to INA § 212(e)

1. Not eligible for an immigrant visa or to adjust status;

2. Not eligible for an H visa or an L visa (intracompany transferees and dependents);

3. Not eligible to change status within the U.S. from J to any other nonimmigrant category except A and G;

4. J-2 dependents are subject if the J-1 is subject, so restrictions also apply to J-2 dependents.

C. Common misconceptions:

1. Being subject does not prevent one from leaving U.S. and re-entering in a different NIV status as long as it is not H or L.

2. Those that are subject to 212(e) but who entered in a status other than J are allowed to change status to H or L (only the H and L visa is prohibited). Useful tool when waiver is still pending.

D. Two ways to satisfy INA § 212(e):

1. Return to the country of nationality or last place of permanent residence for two years. Does not need to be continuous. See 9 FAM 40.202 N1.3

2. Seek a waiver of INA § 212(e). Waivers are beyond the scope of today's session. For more information see http://travel.state.gov/visa/temp/info/info_1296.html

E. Effect of a Waiver:

When timing a waiver application it is necessary to understand the impact of the waiver on current J-1 status. DOS sees a waiver as an "exit" from the sole obligation of the program, and therefore restricts the ability to obtain continued benefits after a waiver has been granted. After a waiver is approved by DOS, no future extensions are possible (which could impact post-completion employment opportunities for students, for example) or reinstatements. Transfers can also be negatively impacted.

Tip: Don't seek a waiver when you believe a mistake has been made in the original consular determination. Seek an Advisory Opinion. Advisory opinions have no negative impact on J-1 status.

VI. An examination of the M classification and reinstatement

M-1s: allows student to attend an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States. INA § 101(a)(15)(M)

A. Maintenance of status

1. Take a full course of study except during vacation term, practical training, or if authorized for reduced course load by DSO) 8 CFR 214.2(m)(9)

a. For study at community college, 12 hours per term

b. For other degree-conferring postsecondary vocational or business schools, 12 hours of instruction per week

c. For other vocational programs, 18 clock hours per week

d. For vocational high school, not less than the minimum prescribed by the school for normal progress

2. Refrain from unauthorized employment --The only employment M-1 students are eligible for is post-completion practical training. No options for on-campus or Curricular Practical Training.

3. Refrain from criminal activity (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)

4. Do not willfully fail to provide full and truthful information requested by the Service 8 CFR 214.1(f)

5. Also subject to a variety of SEVIS reporting requirements, too (report to DSO no later than 30 days after program start date, notify DSO of change of address within 10 days, etc.)

--DSO can request SEVIS Help Desk to correct some SEVIS record problems

6. May not change status to F-1 unless erroneously admitted as M-1. May leave and re-enter in F-1. M-2 dependent may change to F-1.

B. Reinstatement

1. Criteria - same as for F-1s (8 CFR 214.2(m)(16)) - see III above

2. Process - same as for F-1s - see III above

VII. Dissecting "duration of status" and overstay/unlawful presence issues for Fs, Js, and Ms

A. Quick review of INA 222(g) and INA 212(a)(9)(B)

1. INA 222(g): When alien remains in U.S. past period of stay authorized by AG, visa becomes void, and alien must obtain visas at consular office located in country of nationality unless extraordinary circumstances

2. INA 212(a)(9)(B): Alien deemed unlawfully present if in U.S. past period of stay authorized by AG, and after voluntarily departing is subject to three-year bar after 181-364 days or ten-year bar after 365 days.

B. Ms

1. Essential to note that Ms are not admitted for "D/S" like Fs and Js, but are admitted for specific period (so have date-specific I-94)

2. Since they are not granted "D/S" but admitted for a specific period of authorized stay, they may overstay and accrue unlawful presence and be subject to 222(g) and 212(a)(9)(B)

C. Fs and Js

1. Admitted for duration of status ("D/S"), so their status endures as long as they maintain it by having a current I-20 or DS-2019 and meeting the other requirements for maintenance of status

2. Since they are admitted for D/S and their period of authorized stay does not expire, when can they become subject to 222(g) and 212(a)(9)(B)?

a. Only when the Service finds a violation of status while adjudicating an application/petition or when an immigration judge finds a violation of status in the course of proceedings (violations of status and SEVIS terminations DO NOT trigger 222(g) and 212(a)(9)(B))

1. Memo of 9/19/1997 from Paul Virtue withdrew prior guidance that violation of "terms and conditions" of nonimmigrant status or commission of crimes rendering one inadmissible or removable triggered 212(a)(9)(B). "Under the modified interpretation, unlawful presence . . . includes only periods of stay in the United States beyond the date noted on Form I-94 [and] does not begin to accrue from the date of a status violation (including unauthorized employment)." Only when an immigration judge makes a finding of violation of status in the course of proceedings or when the Service makes such a determination in the course of adjudicating a benefit application can UP otherwise begin to accrue. AILA doc. 97092240. See also 3/23/1998 DOS cable more explicitly clarifying applicability of 222(g) to D/S cases (AILA doc. 98032392) and 4/4/1998 DOS cable more explicitly clarifying application of 212(a)(9)(B) to D/S cases (AILA doc. 98040490) and 9/19/1999 DOS cable on 222(g), AILA doc. 99071990 .

2. Memo of 3/3/2000 from Michael Pearson further clarifies with respect to D/S: "Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a violation of status while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings." AILA doc. 00030774. See also memo of 3/3/2000 from Michael Pearson clarifying that D/S aliens who leave U.S. while COS or EOS application pending do not become subject to 222(g) if no status violation found, AILA doc. 00030773.

3. Memo of 5/6/2009 from Neufeld, Scialabba, and Chang, "Consolidation of Guidance Concerning Unlawful Presence . . ." echoes and does not vary from 2000 and 1997 memos as far as D/S is concerned (see page 25), and discusses the distinction between unlawful status and unlawful presence (see page 9). Revises re- designated Chapter 40.9 of AFM. AILA Doc. 09051468

* Note that these are INS and USCIS guidance, and with the re-organization or splintering of INS, it is unclear whether CBP and ICE will continue to observe the INS guidance or will agree with the USCIS guidance. For an excellent article on the agencies' differing approaches to a similar issue, see Danielle Rizzo's "Is My Client In A Period Of Stay Authorized By The Attorney General? It Depends On Who You Ask!" at http://www.ilw.com/articles/2009,0120-rizzo.shtm

3. In practice, how do Fs and Js become subject to 222(g) and 212(a)(9)(B)?

a. Denial of reinstatement application is far and away the most common route

1) Usually reinstatement application involves admission of violation of status and denial considered a finding of violation of status

--See Bednarz letter, 70 Interp. Rel. 1120-1121 (Aug. 23, 1993), explaining historical approach to reinstatement: (1) admission of violation of status, (2) legal determination that applicant is out of status, and (3) judgment by agency that resumption of status is warranted.

2) Some denial notices state that UP has begun to accrue

b. Denial of COS application, for instance request for B-1/B-2 or H-1B status after F or J program (especially now that 90+ days of unemployment considered violation of status for Fs)

c. Possible in other situations, such as adjudication of I-765 for optional practical training, but rare

d. Of course, pursuant to proceedings

1) Remember, status violations and SEVIS terminations do not trigger 222(g) or 212(a)(9)(B), they may lead to removal proceedings

2) Very difficult to obtain reinstatement in proceedings (must educate judge)

VIII. Effect of lawful permanent residency process on status and eligibility for benefits

WARNING: VERY MURKY AREA.

Whether to maintain, attempt to maintain, or do all things required by nonimmigrant status after applying for adjustment of status is an area requiring careful analysis and advising by attorney. For many clients, it will make sense to maintain status, but for others the benefits of abandoning nonimmigrant status may outweigh the risks. We've probably all seen cases in which the student divorces and withdraws I-485 based on marriage to USC and continues as F-1, and I've even seen one case in which the I-485 denial notice (in divorce scenario) states that student is reinstated to F-1 status. For me, whether an adjustment applicant or even beneficiary of an I-130/I-140 may maintain status, may obtain benefits (like OPT), or may re-enter as a nonimmigrant are very different questions.

A. Maintenance of Status

1. My conclusion-some disagree-is that it is possible to maintain F, J, M status while processing toward lawful permanent residence, even as AOS applicant

a. In Matter of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975); 70 No. 42 Interpreter Releases 1444, 1456-58 (No. 1, 1993), the Board of Immigration Appeals found that a student's filing of an adjustment of status application did not in itself constitute a failure to maintain his nonimmigrant status.

The decision includes an interesting discussion of the evolution of section 245 of the Immigration and Nationality Act to allow maintenance of nonimmigrant status while seeking adjustment of status. The 1952 Act provided that "Any alien who shall file an application for adjustment of his status under this section (245) shall thereby terminate his nonimmigrant status. A 1958 amendment to the act specifically eliminated this provision. In recognition of this, the BIA determined in Hosseinpour that Congress intentionally eliminated the termination provision so that maintenance of nonimmigrant status would be possible for adjustment of status applicants.

b. When DSO should terminate SEVIS record is an area of much disagreement and confusion, and you'll encounter many different approaches. Some terminate-incorrectly when I-130 or I-485 is filed, others when student uses EAD to work off campus, yet others when student travels with advance parole.

No official guidance from SEVP (only some indication that they will eventually provide guidance). Changing, occasionally conflicting guidance to DSOs from Help Desk.

Informal guidance from SEVP and usually from Help Desk: When "student files an adjustment of status application (Form I-485) but maintains F/M status, the student's SEVIS record should remain active until the adjustment is approved. The DSO should then manually terminate the record for 'change of status approved. Note the circumstances in the remarks and provide the student's A number or receipt number."

B. Benefits of status

Once AOS is filed, unlikely to be able to obtain benefits like OPT from USCIS. Some DSOs report students who have EAD based on I-485 also receiving EAD for OPT, but in various liaison settings USCIS has indicated that for AOS applicants who also apply for OPT it would change "(c)(3)" notation on I-765 for OPT to "(c)(9)" for EAD based on AOS. Many DSOs will grant extension or change of level if student has otherwise maintained status, but some will not. Some will not recommend OPT, but others will recommend OPT, encourage student to disclose I-485, and let USCIS decide eligibility.

C. Travel

Of course, once student has applied for AOS, should use advance parole to travel. With labor certification process underway of I-130/I-140 pending, careful analysis of risk and advising of client required. DS-156 does not ask about labor cert. (as did OF-156), but asks about "immigrant visa petition" possible relative-sponsors in U.S., etc. And discussions with Consular Officer can encompass many other topics not on DS-156.

DOS officials regularly indicate at conferences and in other informal settings that Consular Officers should consider near-term intent rather than long-term intent in adjudicating visa application, so a "family 4" I-130 that will probably provide a student a current priority date in about 20 years shouldn't result in denial of a visa for a master's program. DOS cable (http://travel.state.gov/visa/laws/telegrams/telegrams_2734.html) 9/2005 allows for this logic but does not really state it, but rather says that the visa application should be "adjudicated based on present intent - not on contingencies of what might happen in the future, during a lengthy period of study in the US."

See also Cyrus Mehta's article "Students and Immigrant Intent" at http://www.ilw.com/articles/2009,0512-mehta.shtm

From Elizabeth James

2. M-1s: allows student to attend an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States. INA § 101(a)(15)(M)

a. Maintenance of status

1) Take a full course of study except during vacation term, practical training, or if authorized for reduced course load by DSO) 8 CFR 214.2(m)(9)

a) For study at community college, 12 hours per term

b) For other degree-conferring postsecondary vocational or business schools, 12 hours of instruction per week

c) For other vocational programs, 18 clock hours per week

d) For vocational high school, not less than the minimum prescribed by the school for normal progress

2) Refrain from unauthorized employment a) The only employment M-1 students are eligible for is post-completion practical training. No options for on-campus or Curricular Practical Training.

3) Refrain from criminal activity (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)

4) Do not willfully fail to provide full and truthful information requested by the Service 8 CFR 214.1(f)

5) Also subject to a variety of SEVIS reporting requirements, too (report to DSO no later than 30 days after program start date, notify DSO of change of address within 10 days, etc.) --DSO can request SEVIS Help Desk to correct some SEVIS record problems

6) May not change status to F-1 unless erroneously admitted as M-1. May leave and re-enter in F-1. M-2 dependent may change to F-1.

b. Reinstatement

1) Criteria - same as for F-1s (8 CFR 214.2(m)(16)):

2) Process - same as for F-1s

3. J-1s

a. Maintenance of status

The Exchange Visitor program provides a variety of categories, such as college/university students, professors and research scholars, short-term scholars, specialists, trainees, interns, foreign medical graduates, etc. and requirements for maintenance of status vary among them.

1) General requirements:

a) Maintain health insurance meeting DOS requirements

b) Refrain from unauthorized employment

c) Avoid criminal convictions (conviction of certain crimes constitutes a failure to maintain status under INA 241(a)(1)(C)(i)) 8 CFR 214.1(g)

d) Do not willfully fail to provide full and truthful information requested by Service 8 CFR 214.1(f))

e) Also subject to a variety of SEVIS reporting requirements, too (report to Responsible Officer (RO no later than 30 days after program start date, notify RO of change of address within 10 days, etc.)

- Help Desk is a resource to correct SEVIS issues

2) Examples of category-specific requirements:

a) College and university students: pursue a full course of study as defined by the institution, except during annual vacation or academic training or unless authorized for reduced course load

b) Student Intern category: Rule published July 21, 2008, but SEVIS functionality did not catch up until February 20, 2009. Although EV sponsors who were approved for the Student category were automatically approved to issue under the Student Intern category, the category has more in common with the privately sponsored Trainee/Intern categories than with students. Universities are still evaluating how to use this category, if they use it at all.

b) Professors and research scholars: pursue the teaching, research, observation or consulting activities described on the DS-2019 at the location noted, and do not hold a tenure-track position

b. Changes in Program of Study: One aspect of J-1 program that is unique is the concept that one is admitted to complete a defined objective. Changes between categories, with the sole exception of the Professor/Research Scholar categories, require the approval of the DOS, which is very seldom granted and only when "necessary due to unusual or exceptional circumstances." 22 C.F.R. § 62.41(a).

c. Change in Degree Level is called "Matriculation" in SEVIS, and not all types of matriculation between levels is possible (for example, between secondary school and post-secondary program). Changes in major must be carefully considered, particularly where government funding is involved (i.e. Would the foreign government who funded the student's engineering program approve of a change of major to fashion merchandising?)

d. Transfer between programs: Similar issues surround a transfer from one program to another. The principal underlying question is again whether the original objective will remain unchanged. Must remain in same J-1 category. Procedural issues can occasionally be an issue, however this is entirely the domain of ROs at the individual program sites. See 22 C.F.R. § 62.42 ; § 62.76.

e. Program Extensions: Program extensions can be performed by the RO if within the category's maximum duration. There is no maximum duration for student categories, however student must maintain full time enrollment throughout duration of extension in order to maintain status. Other categories do have maximum durations, and there is a procedure in place to request additional time from the Department of State. See 22 C.F.R. § 62.43(c) for details.

1) Effect of waiver of INA § 212(e) on extension eligibility: While not stated in the regulations, DOS has articulated that program extensions are not possible after a favorable waiver recommendation. See 9 FAM 41.62 N10.2

f. Correcting the Record and Reinstatement

1) Correcting the record

Some minor or technical infractions may be remedied by the Responsible Officer or an Alternate Responsible Officer of the institution's J-1 program through a correction of the SEVIS record 22 CFR 62.45(b),(c), and (d)

a) Technical/minor violations listed at 22 CFR 62.45(c)(1), include, for a period of no more than 120 days:

i) failure to extend the Form DS-2019 in a timely manner,

ii) failure on the part of the exchange visitor to conclude a transfer of program prior to the end date on the current Form DS-2019,

iii) failure to receive RO approval before accepting an honorarium or other type of payment for engaging in a normally approvable and appropriate activity

b) RO corrects record by issuing a Form DS-2019 with "correct the record" notation or, in the case of honorarium, by giving EV an authorization letter

2) Reinstatement

a) For substantive violations, reinstatement is required. i) Substantive violations include continuing a "correctable" failure to maintain status for more that 120 days, and failure to maintain a full course of study

ii) Must show failure to maintain valid program status was due to circumstances beyond the control of EV or due to administrative delay or oversight, inadvertence, or excusable neglect on the part of RO or EV, and must show unusual hardship would result if reinstatement not granted

b) For a variety of violations, reinstatement is not available, including:

i) knowingly or willfully failing to maintain health insurance

ii) engaging in unauthorized employment

iii) suspension or termination from EV program

iv) continuing a "correctable" or "reinstatable" violation of status for more than 270 days v) failure to pay SEVIS (I-901) fee

Reinstatement is also not available to those who have received a favorable recommendation from DOS on waiver of home residence requirement

c) Reinstatement process requires submission of reinstatement request by RO through SEVIS, payment of $246.00 fee through pay.gov, and then submission of supporting documents including letter from RO to DOS Office of Exchange Coordination and Designation. When DOS approves, RO can issue new DS-2019 to EV through SEVIS.

f. The Two Year Home Residency Requirement

1) One becomes subject to INA § 212(e) in three circumstances:

a) Received funding from either the foreign or U.S. government. See 22 C.F.R. § 62.2. There is a distinction between direct and indirect government funding. Direct funding will make one subject to 212(e). In the case of indirect funding, that funding must have been for the purpose of promoting international educational and cultural exchange.

b) Skills list:

Clarification from Audio Seminar: When a country has been removed in a newer version of the skills list, that individual is no longer subject to 212(e). However, if the country remains on the skills list, but the individual skill is no longer on the new version of the skills list, that does NOT relieve the individual's 212(e) obligation under the prior list. Therefore from a practitioner's standpoint, if the country no longer appears on the most recent skills list, no further review is necessary and your client is no longer subject. However where a country still appears on the skills list, you must go back to the Skills List that applied at the time the program began. See AILA Doc. 09080362 and 09070767.

1984 Skills List: http://www.state.gov/documents/organization/87381.pdf

1997 Skills List: http://exchanges.state.gov/jexchanges/docs/skills_list.pdf

2009 Skills List:

http://edocket.access.gpo.gov/2009/pdf/E9-9657.pdf

c) Graduate Medical Education or Training

2) Effect of being subject to INA § 212(e)

  • Not eligible for an immigrant visa or to adjust status;
  • Not eligible for an H visa or an L visa (intracompany transferees and dependents);
  • Not eligible to change status within the U.S. from J to any other nonimmigrant category except A and G;
  • J-2 dependents are subject if the J-1 is subject, so restrictions also apply to J-2 dependents.

3) Common misconceptions:

  • Being subject does not prevent one from leaving U.S. and re-entering in a different NIV status as long as it is not H or L.
  • Those that are subject to 212(e) but who entered in a status other than J are allowed to change status to H or L (only the H and L visa is prohibited). Useful tool when waiver is still pending.

4) Two ways to satisfy INA § 212(e):

  • Return to the country of nationality or last place of permanent residence for two years. Does not need to be continuous. See 9 FAM 40.202 N1.3
  • Seek a waiver of INA § 212(e). Waivers are beyond the scope of today's session. For more information see http://travel.state.gov/visa/temp/info/info_1296.html

5) Effect of a Waiver: When timing a waiver application it is necessary to understand the impact of the waiver on current J-1 status. DOS sees a waiver as an "exit" from the sole obligation of the program, and therefore restricts the ability to obtain continued benefits after a waiver has been granted. After a waiver is approved by DOS, no future extensions are possible (which could impact post-completion employment opportunities for students, for example) or reinstatements. Transfers can also be negatively impacted.

  • Tip: Don't seek a waiver when you believe a mistake has been made in the original consular determination. Seek an Advisory Opinion. Advisory opinions have no negative impact on J-1 status.



Citations for ILW.COM's Seminar Family Immigration For Experts

From Karen Pennington

  • Citations Non-criminal grounds of inadmissibility 09/17/2009
  • Matter of Areguillin , 21 I&N Dec. 38 (BIA 1995)
  • AILF Amicus brief in the pending BIA appeal In re Aguilar-Cerda where the BIA previously held that Matter of Areguillin is no longer good law is AILA doc. 0909864
  • VWP - Momeni v. Chertoff, 521 F.3d 1095 (9th Cir. 2008)
  • Matter of Bulnes-Nolasco, 29 I&N Dec. 57 (BIA July 23, 2009)
  • Flores-Figueroa v. United States, 556 U.S. ____ (2009)
  • Matter of Wang, 25 I&N Dec. 28 (BIA 2009)
  • Costelo v. Chertoff, No. 08-688 (CD Cal. filed June 20, 2008)
From Vishal Chander

8 U.S.C. §1186a (d)(2)(A), INA 216(d)(2)(A).

8 C.F.R. § 216.4(a).

8 U.S.C. §1186a (d)(2)(B), INA 216(d)(2)(B).

8 C.F.R. § 216(a)(6).

Letter, Weinig, INS Deputy Assistant Commissioner for Adjudications (Jun. 29, 1989) reprinted in No. 31 Interpreter Releases 907, 908 (Aug. 14, 1989).

Response No. 11, INS responses to questions on IMFA raised at AILA Annual Conference, Washington, D.C., on June 10, 1989 (Mar. 5, 1990), reported and reproduced in 67 Interpreter Releases 314 , 334 (Mar. 19, 1990).

Statement of M. Shaul, INS Senior Immigration Examiner, AILA Annual Conference, Washington, D.C. (June 10, 1989).

8 U.S.C. §1186a (g), INA 216(g).

8 C.F.R. § 216.4(a)(2)

8 C.F.R. 216(a)(4).

Memo, Yates, Acting Assoc. Dir. Operation, BCIS, HQADN 70/23.12 (Dec. 2, 2003).

8 U.S.C. §1186a(c)(4), INA §216(c)(4).

8 C.F.R. § 216.5 (e)(2).

Damon v. Ashcroft, 360 F.3d 1084, 1089 (9th Cir. 2004), Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975).

Letter, Weinig, INS Deputy Asst. Comm. For Adjudications, reprinted in 66 No. 44 Interpreter Releases 1268 (Nov. 13, 1989).

"INS Answers Marriage Fraud Questions" Questions 38-40, reprinted in 67 Interpreter Releases 334, 339 (Mar. 19, 1990).

8 U.S.C. §1186a (c)(3)(B), INA 216(c)(3)(B).

8 U.S.C. §1186a (c)(3)(A), INA 216(c)(3)(A).

8 C.F.R. §216.4 (c)(4).

8 USCA §1186a(b)(2) (c)(3)(D), INA §216(b)(2) (c)(3)(D).

Memorandum, Neufeld, Acting Assoc. Dir., reprinted in 86 No. 27 Interpreter Releases 1855 (Jul. 20, 2009).

8 U.S.C. §1186a (b)(2), INA 216 (b)(2).

8 U.S.C. §1186a (c)(2)(B), INA 216 (c)(2)(B).

8 U.S.C. §1186a (c)(3)(D), INA 216 (c)(3)(D).

8 C.F.R. § 216.5 (f).

8 U.S.C. §1186a (d)(2)(C), INA 216 (d)(2)(C).

8 C.F.R. §216.4(a)(6); 8 C.F.R. §1216.4(a)(6).


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