Immigration Victory for “Aged Out” Sons & Daughters: De Osorio v. Mayorkas (9th Cir. 2012) Interprets the Child Status Protection Act

The U.S. Court of Appeals for the Ninth Circuit has held that a son or daughter who was the derivative beneficiary of a family-sponsored immigrant petition but “aged out” (didn’t qualify because he or she turned age 21) may apply the old petition’s priority date to a new petition. This may help you immigrate years faster. Continue reading “Immigration Victory for “Aged Out” Sons & Daughters: De Osorio v. Mayorkas (9th Cir. 2012) Interprets the Child Status Protection Act”

DOS Increases Fees for Immigrant Visas & American Citizen Services

I previously reported on fee increases by the U.S. Department of State (DOS) for nonimmigrant visas effective June 4, 2010.

Now, DOS has also issued an interim final rule increasing fees for immigrant visas and certain American Citizen Services, effective July 13. DOS justifies the changes by citing an independent cost of service study’s findings that the U.S. Government is not fully covering its costs for providing these services.

Here are the changes for the most common fees:

NEW CONSULAR FEES EFFECTIVE JULY 13, 2010
  PRIOR FEE NEW FEE
Immigrant Visa Fees
IV Application Processing Fee    
   Family-based immigrant visa $ 355.00 $ 330.00
   Employment-based immigrant visa $ 355.00 $ 720.00
   Other immigrant visas (SIVs, DVs, etc.) $ 355.00 $ 305.00
IV Security Surcharge $ 45.00 $ 74.00
Domestic (NVC) review of Affidavit of Support $  70.00 $ 88.00
Determining Returning Resident Status $ 400.00 $ 380.00
Passport Fees
Additional passport visa pages $ 82.00
Consular Report of Birth Abroad $ 65.00 $  100.00
Renunciation of U.S. Citizenship $ 450.00

2009 Statistics for EB-5 Investor Visas

Statistics show a surge in interest in the EB-5 investor visa program during 2009. Created as part of the Immigration Act of 1990, the EB-5 visa program grants lawful permanent residence to foreign nationals who invest $500,000 or $1 million in U.S. businesses and create or preserve at least 10 U.S. jobs.

Especially noteworthy is the increase in “regional centers.” These are private corporations or government agencies which can pool investor money to make large investments in specific geographic areas. The centers have used EB-5 investor capital in a wide variety of projects, including hotels, manufacturing enterprises, farms, restaurants, and technology companies.

U.S. Citizenship and Immigration Services statistics for fiscal year 2009 (ending October 1, 2009):

* Form I-526, Immigrant Petition by Alien Entrepreneur:  1028 received, 966 approved, 163 denied.
* Form I-829, Petition by Entrepreneur to Remove Conditions: 437 received, 335 approved, 55 denied.

U.S. Department of State Statistics:

* FY 2009: 4,218 immigrant visas issued.
* FY 2008: 1,443 immigrant visas issued.

Regional Centers:

* FY 2009: 74
* FY 2008: 23

National Visa Center Goes Paperless: Pilot Program to Transmit Data Electronically to the U.S. Consulate in Guangzhou

If you are familiar with the process of applying for an immigrant visa at the U.S. Consulate in Guangzhou, you know that  it can take months for the National Visa Center (NVC) to mail a case to the Consulate. The delay occur because China’s Customs office drags their feet in releasing the Consulate’s mail. NVC has now begun a pilot program to eliminate that delay by sending cases electronically to the Consulate.

As background, a petitioner residing in the U.S. files the Form I-130, Petition for Alien Relative, with a U.S. Citizenship and Immigration Services (USCIS) stateside office. Upon approval, USCIS forwards the case to NVC. The NVC does administrative processing of the file (including collecting the fees and case documents from the petitioner and applicant), then sends the file to the Consulate for interview.

The NVC pilot program to send cases electronically to the Consulate is only available to immediate relatives of U.S. citizens over the age of 21 years, including the following visa categories:

  • IR-1: Spouse of U.S. citizen
  • IR-2: Child of U.S. citizen
  • CR-1: Conditional Spouse of U.S. citizen (i.e., married less than 2 years ago)
  • CR-2: Conditional Child of U.S. citizen
  • IR-5: Parent of U.S. citizen

An applicant who wishes to participate in the pilot program must send an email to NVC to opt in. Then, the applicant will receive instructions on how to submit documents to NVC by email in PDF format. NVC will forward the electronic documents to the Consulate. Later, the applicant will bring the original documents to the interview.

For persons who opt to use electronic processing, the case number will be changed by NVC so that it starts with “GZO” instead of the original “GUZ” case number.

I haven’t seen any estimates from the government, but my best estimate is that the pilot program will shave an average of 3 months off immigrant visa processing, so that the entire process (from filing the I-130 to obtaining the immigrant visa) will be 9-15 months instead of the previous 12-18 months. Most often, the critical variable for determining whether the case will take closer to 9 or 15 months will be how long USCIS takes to process the I-130.

Our firm is well prepared for the switch to electronic processing because we already do electronic processing for various kinds of cases with the State Department, Department of Homeland Security, and the Department of Labor.

Further information is available on the Consulate’s website and on the NVC’s following webpages:

* Important Notice to Immigrant Visa Applicants Concerning Electronic Processing Requirements
* NVC Immigrant Visa Electronically Processing
* Electronic Processing Participation (how to opt in)

Permanent Resident Card Production Delays

USCIS has announced that applicants may experience up to an eight-week delay in the delivery of their permanent resident cards while USCIS upgrades its card production equipment.

If you have recently been admitted to the U.S. as an immigrant, you will still be able to travel and seek employment in the U.S. Your immigrant visa stamped by USCIS at the time of admission is valid evidence of lawful permanent resident (LPR) status for one year from the date of admission.

EB-5 Regional Centers Stay Alive … for the Moment

On March 11 the President signed the Fiscal 2009 Omnibus Appropriations Bill, H.R. 1105, extending the EB-5 Immigrant Investor Pilot Program. 

This is the Pilot Program that allows USCIS to receive, process, and adjudicate Forms I-526, Immigrant Petitions by Alien Entrepreneur, affiliated with Regional Centers relying on “indirect” job creation analysis. The law also gives USCIS the power to approve applications for adjustment of status on the basis of such I-526s and gives U.S. Consulates the power to approve applications for immigrant visas on the basis of such I-526s. Currently, there are 45 regional centers throughout the United States.

Unfortunately, the Pilot Program was extended only through September 30, 2009. This leaves investors in doubt–if they invest in a Regional Center now, their applications for adjustment of status or immigrant visas will only be approved after September 30 if the law is extended once more.

Such a short extension doesn’t exactly inspire foreign investors’ confidence in the American economy, does it?

Immigrant Widows Left in Limbo

Everybody loves a love story – everybody it seems, except the U.S. Citizenship and Immigration Services. In our post-9/11 world, immigration has become increasingly tough on, of all groups, widows.

A foreigner who marries a U.S. citizen is entitled to become a U.S. resident. But as CBS’ 60 Minutes reports, USCIS wants to deport several hundred widows who had been married to American citizens when the Americans died.

USCIS claims basically that a widow is not a wife, and that if the widow did not complete the process to become a U.S. resident while her husband was alive, she cannot remain in the country. This is the subject of ongoing litigation.



EB-5 Investor Visa Update from USCIS

On Sept. 22, 2008, U.S. Citizenship and Immigration Services released a powerpoint presentation with updates on the EB-5 investor visa program for Fiscal Year 2008. Here are the highlights:

  1. 12 new EB-5 regional centers were approved.
  2. 1017 Forms I-526, Immigrant Petitions for Alien Entrepreneurs, were filed.
  3. 350 Forms I-829, Petitions by Entrepreneurs to Remove Conditions, were filed.

What does this mean? First, with more approved EB-5 regional centers, investors now have more choices for passive investments, meaning more options for EB-5 investments that don’t require investors to establish and manage their own businesses. Second, while EB-5 filings are up, it’s still hard to call the EB-5 program popular–only a fraction of the total 10,000 visas per year are being used. You can see the powerpoint presentation here.

EB-5 News: Philadelphia Convention Center Investment Plan Falls Through

According to the below news story, CanAm has signed up 150 Chinese seeking EB-5 visas to invest in a company that would loan money to the Philadelphia Convention Center. The investors already deposited their money–$500,000 each–in escrow, apparently as long as a year ago. The only problem is that the Convention Center doesn’t want to borrow the investors’ money. Now, the investors need to start over and identify new investment opportunities.

Clients often ask our firm what are the risks associated with a particular EB-5 investment. Here, as CanAm admits, there was a risk in raising the money before the Convention Center approved the deal. I wonder how many of the investors understood that risk.

————-

Philadelphia Inquirer
July 22, 2008

Chinese millionaires turned away: The Convention Center board says the money presents too many issues.
By Jennifer Lin and Marcia Gelbart

Close to 150 Chinese millionaires want to help Philadelphia expand its Convention Center, but the center’s board wants no part of their cash.

That has left the potential investors more than a little frustrated.

For the Chinese, the money represents a legal way to expedite access to U.S. “green cards” for permanent residency. Adhering to the requirements of a nearly 20-year-old federal immigration program, they have each plunked down $500,000 in an escrow account at a U.S. bank.

For the state, that money – $73.5 million – could be a cheap way for the Convention Center to borrow funds to cover some of the expansion’s construction costs, which are projected to surge over the $700 million budgeted. (Under the loan program, the money would be repaid, over five years, at a remarkably low interest rate of 2.5 percent.)

But for now the Convention Center, as cash-starved as it is, has no interest in the foreign funds.

“We considered it. We looked at it. But it was kind of a bridge too far . . . too complex for us to consider,” Buck Riley, chairman of the 15-member Convention Center Authority, said last week. “Right now, it is a dead issue.”

Another board member said the board was hesitant to get involved with what seemed like “immigration policy.”

Known in Philadelphia as the “Welcome Fund,” the little-known loan program has been administered jointly since 2003 by the Philadelphia Industrial Development Corp. (PIDC), a city-related nonprofit economic-development agency, and CanAm Enterprises, a New York firm that has structured immigrant investor deals since 1987, mostly in Canada.

PIDC identifies potential borrowers; CanAm seeks out investors. Approved investors receive conditional green cards.

Within two years, they become eligible for permanent green cards, if, among other things, their money spurred jobs. Under the Philadelphia program, 10 new jobs must be created for every $500,000 invested.

To date, the foreign funds have helped pay for 21 projects in Philadelphia totaling $148 million. Among those receiving investment dollars are Comcast Corp. ($26 million), Temple University Health System ($13 million), August Aerospace Corp. ($15 million), the law firm of Duane Morris ($6 million), and Stephen Starr’s Continental Mid-Town restaurant ($3 million).

“We owe $33 billion of debt on our balance sheet, so if we have an opportunity to borrow some money at 1 or 2 percent, yes, we’re going to do it,” said Comcast executive David L. Cohen.

With $73.5 million sitting in a bank account, the Convention Center project would have been the largest, by far.

“Investors like the Convention Center project. I feel very sad about this. Everybody is getting angry,” Dennis Chou said in an interview last week in Shanghai. Based in an office in a high-rise on Beijing Road, Chou works for CanAm, marketing the fund to would-be investors in the Asia-Pacific region.

Chou said he was told last February to begin marketing the Convention Center to investors, and he did – holding informational sessions about the center and Philadelphia throughout China.

Quickly, 147 investors were lined up, but with no movement since then, he said the fund’s credibility was under fire. “When people come in, I have to say, sorry, sorry. I don’t know how to explain to our customers.”

Indeed, CanAm’s president, Tom Rosenfeld, said that if the Convention Center deal collapsed, “it would hurt the whole program.”

In an interview from his New York office, Rosenfeld acknowledged there was a risk in raising the money before the Convention Center approved the deal.

But he said he did so after discussions with officials from the Rendell administration and PIDC. “The state is financing the construction. Clearly they have a say in it.”

Although the authority was not involved in those early conversations, Rosenfeld said, “the assumption was once they understood the program and the benefits, and that it was not harmful, they would vote for this thing.”

Michael Masch, Pennsylvania budget secretary until a few weeks ago, did not return calls last week.

But he voiced support for the loan program as recently as June 3 in a letter to the authority. By his estimates, he wrote, the low-cost loan could save the authority $6 million to $8 million on interest payments.

Peter Longstreth, president of PIDC, said, “Some of the investors may have gotten a little bit ahead of the deal. . . . The fact there are funds in an escrow for a period of time is quite typical.”

The Convention Center has taken no formal vote on the program and has more or less shelved it for the foreseeable future.

“It did not go over well. It seemed something outside our realm,” said board member David Woods, chief of staff to Senate Majority Leader Domenic Pileggi (R., Delaware).

“People were concerned they were dealing with immigration policy while they should really be focused on financing for the Convention Center.”

Still, Rosenfeld maintains hope that the investors’ efforts will not be futile, particularly since final construction costs remain unknown. “I’m not taking this to be a dead issue,” he said. “This is a great program that doesn’t cost the city or state any money, so shouldn’t Philadelphia benefit from it in a way that can complete construction of the Convention
Center?”

Update: Consular Recommendations to Revoke Visa Petitions

Our law firm is often retained to represent clients where a U.S. Consulate has returned the visa petition to USCIS to consider revocation. This process is slower and less transparent than it should be. Still, this update explains that recently there have been some minor improvements in the process. These improvements were mentioned by Jonathan R. Scharfen, Acting Director of USCIS, in a recent response[1] to the USCIS Ombudsman’s recommendations for reform.[2]

Background

Generally, USCIS approval of a visa petition is a prerequisite for the issuance of a visa by a U.S. consulate abroad. For example, USCIS must approve an employer’s H-1B petition before the worker applies for a visa at a U.S. consulate. Similarly, USCIS must approve a U.S. husband’s immigrant visa petition before the wife can apply for an immigrant visa at a U.S. consulate.

Even after a petition has been approved, USCIS can revoke it for good cause.[3] And consular officers have instructions to return petitions to USCIS[4] for revocation where fraud, misrepresentation, or ineligibility is likely to lead to revocation.[5]

If USCIS concurs with the consular officer’s reasoning, USCIS issues a “Notice of Intent to Revoke” to give the petitioner an opportunity to respond.[6] Once the response from the petitioner is received, USCIS will either reaffirm the petition and send it back to the consulate for processing, or revoke the petition. A petitioner may appeal revocation to the Administrative Appeals Unit.

Ombudsman’s Recommendations Accepted by USCIS

* USCIS Receipt Notice: The Ombudsman recommended that USCIS issue a receipt notice to the petitioner upon receipt from the Consulate of a returned petition. Happily, USCIS has implemented this recommendation. It can take 6-12 months or more between from when a Consulate returns a petition to when USCIS to issue a Notice of Intent to Revoke a returned petition. Previously USCIS didn’t issue receipt notices to acknowledge they had received the returned petitions. Clients were left clueless about the status of their cases.

* USCIS Website Improvements: USCIS has agreed to improve its website’s information related to revocation of petitions, but it appears that the update has not yet been posted.

Ombudsman’s Recommendations Rejected by USCIS

* Uncertain Processing Times: The Ombudsman recommended that USCIS create standard processing times for consideration of revocation of returned petitions, and report current processing times online. USCIS responded that it would not be practical to establish standard processing times because some cases require lengthy fraud investigations, whereas others do not. USCIS’ response is, in my opinion, disappointing. Setting standard processing times are helpful for USCIS service centers to set work priorities and for stakeholders to set reasonable expectations as to how long their cases will take. Moreover, as for other types of cases that USCIS handles, if a fraud investigation is needed, then an exception can be made to the standard processing time.[7] Standard processing times would also, hopefully, reduce the current processing times for consular return cases. Currently, with consular return cases taking a year or more, clients must consider the faster option of filing a new petition. This creates extra work for USCIS, even though USCIS or the Consulate may refuse to act on the new case before USCIS completes decided whether or not to revoke the old petition.

Other Problems with the Consular Return Process

* Readjudication by Consulate: The State Department’s Visa Office has reminded Consulates that they “should not attempt to readjudicate petitions” already decided by USCIS. “Rather, a consular officer should only seek revocation of the petition if the officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the beneficiary is not entitled to the status conferred by the petition. Petitions generally should not be returned unless the post uncovers new information not known to [USCIS] at the time of petition approval.”[8] Despite this reminder, some consular officers seem to return petitions to USCIS when it is not warranted, thereby inconveniencing applicants and creating additional work for USCIS.

* Consular Notice of Intent to Return Petition to USCIS: Currently, a consular officer who decides to return a petition to USCIS needs only to provide notice of this fact to the visa applicant. The officer need not explain the reason why the petition is being returned.[9] Our recommendation is that the officer should provide notice to the visa applicant of the reason why and give the applicant a chance to provide additional evidence that the petition should not be revoked. In some cases, this will be more efficient than waiting a year or more for USCIS to decide whether to revoke the petition.

Conclusion

Despite recent improvements, this legal process remains slower and less transparent than it should be. Counsel should help the visa applicant to be prepared at the time of the consular interview to answer all relevant questions by the consular officer in order to minimize the risk that the officer will return the petition to USCIS with a recommendation for revocation. If there are problems at the interview, it may be wise to contact the Consulate to try to resolve the problems before the petition is returned to USCIS. If the petition is returned, it may be best to both respond to the Notice of Intent to Revoke and consider filing a new petition.


[1] Memo by Jonathan R. Scharfen, USCIS Acting Director, Response to Recommendation #33, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (May 23, 2008).

[2] Memo by Prakash Khatri, USCIS Ombudsman, Recommendation on the Processing of Petitions That Are Returned by the U.S. Department of State for Revocation/Revalidation (Aug. 24, 2007).

[3] INA § 205; 8 C.F.R. § 214.2(l)(9).

[4] Consulates return immigrant petitions (including Ks and Vs) to the National Visa Center and nonimmigrant petitions to the Kentucky Consular Center. In either case, petitions are then routed to the appropriate USCIS offices. Forms I-130, Petitions for Alien Relatives, initially filed with an overseas USCIS office are returned directly to that office by the Consulate. Minutes of AILA-DOS Liaison Meeting (Oct. 2007).

[5] Cable, DOS, 01-State-121801 (July 13, 2001).

[6] 8 C.F.R. § 205.2(b); 8 CFR 214.2(l)(9)(iii).

[7] For example, according to USCIS regulations, L-1 petitions should be adjudicated within 30 days. However, where a fraud investigation is needed, USCIS makes an exception to this time limit. 8 C.F.R. § 214.2(l)(7).

[8] Cable, DOS, 01-State-121801 (July 13, 2001).

[9] Minutes of AILA-DOS Liaison Meeting (Oct. 2007).

USCIS Beijing Office Refuses to Accept Fathers’ Visa Petitions

Today was the fourth time in four years that U.S. citizen fathers have told me that the Beijing office of U.S. Citizenship and Immigration Services (USCIS) has refused to accept immigrant visa petitions (Forms I-130) on behalf of their children.

On all four occassions, USCIS stated reason for the refusal was that the fathers failed to submit photos and Forms G-325A (biographic information) with the petitions. Each time, I’ve contacted USCIS to explain that such materials aren’t required by the official instructions. (A spouse’s immigrant petition does need these materials). And each time, USCIS has agreed to follow the official instructions, accepting the re-submitted petitions.

These four fathers must only be a drop in the bucket. Many others have undoubtedly been refused for the same erroneous reason. If these fathers are able to follow USCIS official instructions, USCIS Beijing should train its staff to do so too.