August 2001 Newsletter
**U.S.
IMMIGRATION NEWS**
August 1, 2001
Published by:
ImmigrationLinks.com, Inc.
“Your Immigration Link to the World”
Copyright © 2001, ImmigrationLinks.com, Inc.
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Disclaimer: This newsletter is provided for general information only. It is NOT legal advice, and should not be relied upon as such. For legal services such as representation, please contact an attorney who specializes in the area of Immigration Law, such as one of our attorney “Service Providers” whose businesses are promoted on our site.
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Welcome to ImmigrationLinks.com, Inc., “Your Immigration Link to the World”. This month we publish our second annual Top Ten Predictions. Last year's predictions proved to be highly accurate, with the majority of the predictions coming to pass. Our new predictions are sure to raise questions, as did last years, but our inside sources give us reason to believe that, once again, a majority will be enacted into law.
The past month has brought forth the new DV-2003 regulations, new petitions being added to the Premium Processing Program, and new proposals for dealing with the large number of unlawful aliens in the US. However, what has not come out are the INS K-3 and V regulations. These were supposed to be out by the end of May, then by the end of July, and now it appears by the end of August.
As
the months pass, we can expect many more changes, and new and exciting
developments in the field of immigration law.
ImmigrationLinks.com has also grown tremendously since its beginning just
one year ago. In this short time we
have become one of the top immigration news and information providers on the
Internet, servicing hundreds of thousands of viewers each month.
With the phenomenal growth of the Internet, nearly everything you need or want to know about US Immigration law is available at the touch of a button. We want to be at the forefront of this new technology and be able to provide instantaneous news and information on the immigration topics that affect those persons wishing to visit, live, or work in the United States. One way is through our monthly newsletters. The purpose of these newsletters is to provide useful and timely information about immigration-related topics that affect persons who come in contact with US Immigration laws. In conjunction with our News, Immigration Hints & Tips, and Legal Research pages, we want to provide you with extensive, up-to-date, and FREE information on US immigration laws and procedures.
Soon, just about anything you need to prepare and process your immigration case will be available online. This includes access to immigration forms and information, as well as direct contact with attorneys and other service providers. For example, our Bulletin Board provides you with free answers to your immigration questions from some of the finest immigration attorneys in the country. Our goal is to be "The Portal Site" for everything having to do with US immigration law. We want to provide you with every service possible to increase your knowledge of the law and to make your online experience more useful and rewarding. We are constantly growing and expanding in order to meet your immigration needs, and many more features are coming soon.
How to Use Our Site?
- Immigration News Page: To get the latest immigration news, updated on a daily basis, go to this page. We have thousands of news articles covering every type of immigration petition or application. You can download free immigration and state department forms, get the latest fee schedules, list of immigration doctors, addresses and telephone numbers of immigration offices, the latest priority dates, current processing times, and much, much more. Check out the “NEWS FLASH” area for late-breaking immigration developments.
- Immigration Hints & Tips Page: Get useful immigration hints and tips that will make the filing of your immigration case easier and faster. Have access to forms and sample briefs and legal memorandum especially prepared by immigration attorneys that you can use with your applications. Attorneys listed in The Best Lawyers in America have prepared many of these documents.
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To view previous issues of our Monthly Immigration Newsletters, Click Here.
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***Coming Soon***
ImmigrationLinks.com is known for its high quality news, information, and research services. It is recognized internationally for one of the top Immigration Law Manuals available on the Internet. Soon, we will be releasing a brand new version of our Do-it-Yourself Processing Kit for Marriage Cases. In keeping with the high quality of all of our products, this will be the finest Immigration Kit available anywhere. It will contain features not available in other do-it-yourself products, and it will be authored by an attorney listed in The Best Lawyers in America, and Law and Leading Attorneys in America. It will prove to be an invaluable resource for those wishing to file their own petition and/or application based upon marriage to a US citizen or lawful permanent resident alien.
The kit will allow persons to file for conditional and permanent residence based on marriage to a US citizen or lawful permanent resident alien. It will allow US citizens to petition for their fiancées, and to apply for the new K-3 visa at consulates outside of the US. Spouses and minor children of permanent resident aliens who qualify for the new V visa will be able to use these kits to obtain V visas or status, work permission, and then permanent residence when their priority dates become current. Also, this kit will have everything needed to file for removal of conditional residence for those who need to do so.
***We expect the kit to be available shortly after INS releases its much awaited K-3 and V regulations.
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Top
Immigration Attorneys Answer Your Immigration Questions for FREE
ImmigrationLinks.com is pleased to announce that some of the top immigration attorneys in the country will be answering your “general” immigration questions for free on our “Bulletin Board” page. This month the law staff of ImmigrationLinks.com will be answering your questions.
We plan on having guest attorneys available to answer your questions at least once a month. This service, as are all other services on our site, is completely free. We hope you will take this opportunity to ask the questions that are important to you.
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DV-2003 Visa Lottery Instructions Issued
The mail-in period for the next Diversity Visa lottery (DV-2003) will be held between noon on October 1, 2001 and noon on October 31, 2001. The State Department has issued complete instructions on what must be included in the application, and where it should be sent.
Go to Our Visa
Lottery Home Page for Complete, FREE
Information
on the Visa Lottery Program
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INS Proposes Raising Filing Fees
The Immigration and Naturalization Service has proposed raising filing fees in over two dozen types of petitions and applications. The new filing fees are expected to go into effect in January 2002.
To read the INS memo announcing the fees, as well as to view a list of the forms scheduled for a fee increase, click on the following link: INS Proposes Raising Filing Fees--Seeks Public Comment
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Our Top Ten
Predictions for 2001/2002
(Based
on information from our sources in Washington and around the world)
10. Congress will pass legislation granting spouses of lawful permanent residents the right to come to the US on visitor visas and allow them to remain while waiting for their priority dates to become current. In addition, husbands and wives of aliens in certain employment categories such as "E"s and "L"s will be given the right to apply for employment authorization while accompanying their spouses in the United States.
9. The Immigration and Naturalization Service will be reorganized into at least two, but possibly more, different sections. For sure, there will be a separation between the enforcement section and the benefits section. This will only cause more confusion and delay than already exists within the agency. In the meantime, extensive backlogs will continue to exist within the Immigration Service, Consular Section, and Labor Departments
8. Congress will amend several of the Affidavit of Support provisions, making it easier for US citizens and permanent residents to sponsor their family members.
7. The US Department of Labor
will drastically revise its procedures in applying for labor certification.
Overall the procedures should be less complicated, but will be more
restrictive as to the types of occupations that can qualify for certification,
at least in the skilled categories.
6. The federal courts will continue to chip away at several of the unconstitutional provisions of IIRAIRA, and will ultimately restore relief to those who committed deportable crimes before the law went into effect.
5. Congress will pass new laws eliminating the bars to admissibility for unlawful presence and restoring waivers of certain grounds of inadmissibility established by the 1996 laws.
4. Congress will amend some of the harsher criminal provisions of the Immigration Act of 1996, including: the elimination of mandatory and indefinite detention; and restoring due process, proportionality, judicial discretion, and judicial review to immigration law.
3. Section 245(i) will be extended for a period of at least 4-12 months, allowing those who are unlawfully in the US to obtain an adjustment of status in this country without the need to return to their country for consular processing.
2. Mexicans, Haitians, El Salvadorians, Guatemalans, and Hondurans will be given work permission and will be allowed to remain in the United States for extended periods of time.
1. Congress will pass, and the President will sign, a new law granting permanent status to anyone who is statutorily eligible and who has been physically present in the US since before 1986.
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INS Update on V and K Regulations
July 27, 2001
The Immigration and Naturalization Service has indicated that the V and K regulations are presently at the Office of Management and Budget for final review. However, it cannot predict when they will actually be published.
While INS has received (and is holding) some filings for these categories, those filings are not considered "properly filed" until regulations are published. Thus, INS is not yet receiving V and K-4 petitions, even though the State Department has started issuing V visas under its regulations.
As soon as we have more on this subject, we will immediately post the information to our web site.
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Democrats Propose New Immigration Plan
August 1, 2001
Washington, DC -- Democrats in Congress have proposed a new immigration plan
that they say is more comprehensive than that being considered by the Bush
administration.
According to Rep. Silvestre Reyes, Congressional Hispanic Caucus chairman,
the Democrats are “trying to put together a proposal that will cover everybody
- not limited to Mexico - that is fair and that recognizes the contributions of
immigrants.”
A task force headed by Secretary of State Colin Powell and Attorney General
John Ashcroft has recommended that the administration grant guest worker status
and eventually legal residency to some of the 3 million Mexicans in this country
illegally.
President Bush has said he also would consider extending the proposal to
people from other countries.
The administration plan is expected to be completed in time for the scheduled
visit of Mexican President Vicente Fox to Washington on September 5th. Democrats
said their plan's release would coincide with the administration’s.
The immigration plan proposed by the Democrats includes:
- A method for reuniting families, possibly by lifting limits on immigrant
visas for Mexicans and Canadians.
- Legal permanent residency for undocumented immigrants who have lived many
years in the United States, paid taxes and had no legal problems.
- Improvements to border safety and enforcement that do not violate due
process rights.
- A temporary guest worker program that will not displace US workers and
that provides a path to legal permanent residence and allows workers to
organize.
- Reorganization of the Immigration and Naturalization Service to reduce application backlogs, and changes in 1996 laws that stripped immigrants of public services.
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Tentative Agreement Reached in Senate Committee on 245(i)
July 26, 2001
The Senate Judiciary Committee today passed by voice vote S. 778, the
extension of Section 245(i), with an amendment introduced by Senators Kyl and
Hatch. The bill now would extend the deadline for filing petitions and
applications until April 30, 2002. In addition, applicants also must be
able to demonstrate that the familial or employment relationship that is the
basis for the application or petition existed on or before the date of enactment
of S. 778, now cited as the Section 245(i) Extension Act of 2001.
During the mark-up, Senator Kyl criticized the Senate Appropriation Committee
for including a permanent restoration of Section 245(i) in their bill. He
criticized the Hagel/Kennedy bill, as introduced, as well as the permanent
extension for not including any dates to limit eligibility, and thereby
encouraging sham marriages. He has indicated as long as the permanent
extension remains on the CSJ bill he will fight any extension of Section 245(i)
including S. 778 which contains the compromise he helped craft.
Senator Kennedy defended his original bill, but agreed to the compromise.
The American Immigration Lawyers Association is hopeful that before the bill
goes to the floor the retroactive application of the new requirement to labor
certification applications will be eliminated.
The full Senate will need to vote on the bill and the House and Senate will
need to work out the differences between their two bills. We will keep you
posted as to all new developments.
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Many Family-Based Visa Numbers Become Unavailable
July 17, 2001
As the August Visa Bulletin indicates, most family-based numbers for Mexico, and all family-based numbers in the first and third preferences are now "unavailable." In addition, many other family-based numbers have retrogressed.
The US State Department advises that the retrogressions result from an unusually large number of adjustment of status applications in these categories being processed by the Immigration Service, with the result, in the case of the "unavailable" categories, that the numbers for the entire fiscal year have been used.
Making a category "unavailable" ensures that additional numbers won't be used this year, which would cause the quota to be exceeded. Retrogressing the dates for a category causes the usage of the numbers to slow down, again to avoid exceeding the quota.
The State Department indicates that it expects the "unavailable"
categories to remain so in September, and it is also possible that additional
family-based categories will retrogress or become "unavailable" in
September.
The Department does indicate, however, that it expects to return the
family-based categories to approximately their July 2001 levels in October, when
the new fiscal year begins.
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State Department Memo to Consular Posts on Visa Revocations
July 1, 2001
The US State Department has sent a cable to all consular posts cautioning them to be judicious in returning IV and NIV petitions to INS for revocation.
The memo notes that such returns should occur only when fraud or ineligibility "can be clearly established."
The entire memo appears below:
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DOS Addresses Petition Revocations
R 130616Z JUL 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
UNCLAS STATE 121801
E.O. 12958: N/A
TAGS: CVIS, CMGT, KFRD
SUBJECT: GUIDANCE ON PETITION REVOCATIONS
REF: AIRGRAM M-240
1. SUMMARY: From time to time, most posts have occasion to
return IV and petition-based NIV petitions to the approving
INS service centers to request reconsideration and
revocation. Posts should be judicious about returning
petitions, since the revocation process is lengthy and the
evidentiary standard that must be met to sustain a petition
revocation is relatively high. Posts should not use the
revocation request process as a means of disposing of
problematic cases in which fraud, misrepresentation, or
ineligibility for status is only suspected but cannot be
clearly established. When posts have determined that a
petition merits a revocation request, the case should be
returned to the approving service center quickly to avoid
lengthy delays in processing. To help posts with this
process, CA/VO/F/P and CA/FPP are currently working with
INS to develop a standard petition return memo and
guidelines for writing effective revocation memos. END
SUMMARY.
Be judicious in returning petitions
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2. Several months ago, CA/VO/F/P conducted an informal
survey of posts' petition revocation processes to determine
post practices and needs in regard to revocation requests.
We learned that, for the most part, posts return relatively
few petitions to INS for revocation. This is a positive
practice from our perspective, since as a general rule
petitions should only be returned to INS when fraud or
misrepresentation or ineligibility for status can be
clearly established or when the petition merits automatic
revocation because of such circumstances as the death of
the petitioner.
3. 9 FAM 42.43 provides general guidance on preparation of
memos to INS requesting revocation of IV petitions.
Separate sections in 9 FAM 41 on petition-based NIV
categories (H, K, L, O, P) provide similar guidance on when
to return those petitions. In all cases the guidance
Amphasizes that INS approval of a petition is prima facie
evidence of the applicant's entitlement to visa status, and
that consular officers should not attempt to readjudicate
petitions. 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 INS at the time of petition approval. The FAM
cautions that posts should seek revocations "sparingly," to
avoid inconveniencing the petitioners and applicants and to
avoid creating an additional administrative burden for INS.
4. Providing solid evidence of fraud or misrepresentation
in a petition relationship may not be achievable in many
cases, particularly those involving marriage or
relationship fraud. The FAM guidance on revocations makes
this point on several occasions -- posts seeking
revocations must show the "factual and concrete reasons for
revocation." INS has asked us to remind consular officers
that revocation requests must provide solid, factual
evidence of fraud or misrepresentation, evidence that is
likely to stand up in a court of law. In the case of sham
marriages, for example, 9 FAM 42.43 N2.2 notes that INS
requires at the least either documentary evidence that
money changed hands between the petitioner and beneficiary
or factual evidence that would convince "a reasonable
person" that the marriage was entered into solely to evade
immigration laws. Without such evidence, INS will be
unlikely to obtain a petition's revocation if a petitioner
chooses to contest a notice of intent to revoke.
No "deep sixing"
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5. Posts should not return petitions to INS based on mere
suspicion or as a substitute for making a decision at post.
If the evidence of fraud, misrepresentation, or
ineligibility for status is strong enough to lead to a
likely revocation, returning the petition would be
warranted. However, if post believes the evidence is not
likely to lead to a revocation and returning the petition
would be a wasted exercise, the petition should not be
returned. Returning cases that are only suspect or that
appear too complex to figure out is not appropriate and
only increases INS' administrative burden and prevents the
applicants and petitioners in these cases from obtaining
the timely decision on their petitions to which they are
entitled.
Use 221(g) with IV cases
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6. Please keep in mind the differences between revocation
of the petition and denial of the visa application. In the
absence of hard, factual evidence of fraud,
misrepresentation, or ineligibility for status, consular
sections are advised to issue the visa, assuming the alien
is otherwise qualified, or if further investigation is
warranted and holds a potential for resolving post's
concerns, use a 221(g) refusal to obtain additional
information. Posts should be generous in allowing
applicants every opportunity to supplement their
applications following a 221(g) refusal. Many consular
sections polled by VO reported that they usually use 221(g)
rather than petition return to INS as the most effective
way of handling cases in which fraud is suspected and where
further Information-gathering is likely to be able to
resolve the doubts one way or the other.
7. VO supports this use of 221(g) with IV petitions, as
returning a petition based on suspicion alone is not
appropriate, and providing the applicant an opportunity to
address post's doubts is a fairer way of dealing with
suspect cases. We encourage posts to use 221(g), except in
those IV cases in which fraud, misrepresentation, or
ineligibility for status can be clearly established.
221(g) allows petitioners and beneficiaries to supplement
the initial application and in many cases overcome the
refusal. Per 22 CFR (9 FAM) 42.83(b), if an applicant
fails to present evidence purporting to overcome the basis
for the 221(g) refusal within one year of the refusal, post
can initiate 203(g) termination procedures (9 FAM 42.83
N1.2).
8. 221(g) may also be appropriate for NIV petition cases.
However, posts should note that there is no 203(g)
termination process for NIV cases. If post obtains
information not known to INS at time of petition approval
which indicates that an applicant is not eligible for the
visa category covered by the petition, the petition should
be returned to the approving service center in accordance
with FAM guidelines pertaining to the relevant visa
category.
Don't sit on cases
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9. Once post has decided that a case warrants return to
INS, the memo requesting revocation should be prepared
expeditiously and the case returned as quickly as possible.
Keeping a case for a lengthy period because officers do not
have time to prepare the revocation memo is not fair to the
applicant or petitioner, only invites more work in the long
run in the form of congressional inquiries and calls about
the case, and can even lead to litigation. It places an
unfair burden on the petitioner and beneficiary, who in
many cases would choose to contest the revocation but
cannot do so until INS has received the file and sent a
notice of intent to revoke to the petitioner. As a rule of
thumb, posts should not allow petitions earmarked for
return to INS to languish more than a week or two. Our e-
mail poll revealed that by-and-large posts are aware of
this need for quick processing and are preparing revocation
memos with dispatch.
Working with INS to develop revocation memo guidelines
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10. CA/VO/F/P and CA/FPP are currently working with INS to
develop a consular return cover worksheet which posts will
be able to use in returning petitions meriting revocation
to the approving service centers. We are also developing
guidelines which posts can use in preparing effective
revocation memos that will satisfy INS' evidentiary
requirements and thus most likely lead to a successful
guidelines which posts can use in preparing effective
revocation memos that will satisfy INS' evidentiary
requirements and thus most likely lead to a successful
revocation. We hope to be able to post this guidance on
the Intranet later this summer.
11. Minimize considered.
POWELL
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Have a Wonderful
Month, and Keep Checking Back for All the Latest Immigration News and
Information
Thank you for taking the time to read through this month's mailing. We hope you have picked up at least a few important pointers. Please feel free to send us your immigration-related article that you want us to include in our next monthly mailing. Click here for instructions. Your article will be sent out at the beginning of next month to all of our subscribers, and it can be viewed online by millions of prospective immigration applicants around the world.
We would also like to hear from anyone who has had either a positive or negative experience with the US Immigration Service, Immigration Court, or a US Consulate, as we would like to share these thoughts with our readers. Appropriate articles will be published in our monthly newsletters. We do need your name and e-mail address in order to obtain additional information if necessary, however this information will not be disclosed without your specific consent.
Even though Congress and the Courts have remedied some of the harsh consequences of the 1996 Act, they have not gone far enough, and there is still much more that has to be accomplished. We will provide our readers with updates on what is still needed to bring fairness and equity to US immigration law. It is important that everyone contact their Senators and Representatives to let them know that we want fairness and justice when dealing with those seeking to join their family members, or prospective employers, in the United States. With your help, the rights of immigrants and their family members will be greatly enhanced.
The entire staff of ImmigrationLinks.com would like to take this opportunity to wish all of you the best in dealing with your immigration case, and have a wonderful summer (unless, of course, you are in the Southern Hemisphere in which case we wish you a wonderful winter).
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