Latest On IMMIGRATION TOPICS

By: Robert Gard

VISA AVAILABILITY – JUNE 2014 (PHILIPPINES)
Family First – 01 Jun 2002
Family Second – “A” 01 May 2012
Family Second“B” – 15 July 2003
Family Third – 08 Mar 1993
Family Fourth – 15 Nov 1990
Employment Based 1st Preference- Current
Employment Based 2nd Preference- Current
Employment Based 3rd Preference- 01 Jan 2008
Third “Other Workers”- 01 Jan 2008
Fourth Certain Religious Workers – Current
5th Employment Creation – Current

Existing Regulations Extending Validity of I-693 Medical Exams for Adjustment of Status (Green Card) Applicants Are Set to Expire May 31st; Effective June 1, 2014, Medical Forms I-693 Submitted to USCIS More Than One Year Prior Will No Longer Be Valid

Since at least 2004, in response to backlogs in certain preference categories, USCIS has agreed to extend the validity of the civil surgeon’s endorsement on Form I- 693 until the time of adjudication of their adjustment of status (green card) application. This policy has generally been extended annually, but will be allowed by the USCIS to expire June 1, 2014. Effective June 1st, Forms I-693 submitted to USCIS more than one year prior will no longer be valid, and some long pending adjustment of status applicants have already received Requests for Evidence (“RFEs”) advising them that the Form I-693 Medical Examination Report and Vaccination Supplement that they had provided in support of their I- 485 adjustment of status application is about to exceed its validity period, and will need to be re-done or re-validated by the Civil Surgeon/Physician.

U.S. Embassy in Manila has Been Ignoring Well-Settled Law in Denying Employment-Based Second Preference Immigrant Visas to Some Physical Therapists with Bachelor’s Degrees and at Least Five Years of Progressive Experience

There have been recent reports that a number of Physical Therapists who are already beneficiaries of approved (by USCIS) Employment-Based Second Preference Immigrant Visa Petitions (“EB-2”) based upon having a Bachelor’s degree plus five years of progressive experience have been refused an immigrant visa by the U.S. Embassy Consular Post in Manila. Upon refusal, the Embassy has been returning the approved petitions to the USCIS for either revocation or reaffirmation. It has been well-settled law since a decision was rendered in a class action suit in 2000 (Chintakuntla v. INS , No. C99-5211 MMC (N.D.Cal.) that a Bachelor’s degree followed by 5 years of progressive experience did meet the EB2 standards as being equivalent to an advanced degree and as part of the order signed by a Federal Judge, agreed to re-adjudicate all cases wrongly denied and to follow these guidelines going forward. The USCIS even amended their Adjudicator’s Field Manual to reflect the settlement reached in the class action case. Apparently someone at the U.S. Embassy in Manila didn’t get the memo, and their wrongful denials are causing all sorts of difficulties. The Visa Office in Washington has been asked to intervene, and additional litigation is contemplated.

USCIS Will Accept Only the “Current” (Revised Version Dated 09/13/2013) of Form N-400 Application for Naturalization Beginning May 5, 2014

Older N-400 Versions Will Not Be Accepted On or After May 5, 2014 Beginning May 5, U.S. Citizenship and Immigration Services (USCIS) will accept only the current edition of Form N-400, Application for Naturalization, dated 9/13/2013. USCIS will reject and return all naturalization applications using previous versions of Form N-400 after Sunday, May 4, 2014. You can find the edition date at the bottom of any Form N-400 page. USCIS states that the revised form has an improved “user-friendly look and feel”, clearer instructions and enhanced 2D barcode technology that improves efficiency and data accuracy, resulting in fewer rejected forms. The ne N-400 form, at 21 pages, is 21 pages, with 13 pages of instructions, more than twice the number of pages of the previous N- 400 Application form. While the legal requirements for Naturalization have not changed, the form asks more probing questions to determine eligibility, particularly about matters such as arrests, convictions, time spent in jail (even if not charged), and other potentially disqualifying factors. Filling out Form N-400: USCIS encourages customers to take advantage of the 2D barcode by accessing the revised form at www.uscis.gov/n-400 and filling it out electronically. Individuals who are unable to fill out the revised Form N-400 electronically may still print the form and complete it by hand in black ink. Before submitting Form N-400, applicants must remember to sign the form, and include the correct filing fee and supporting documentation to avoid a rejected filing.

USCIS is Expanding Their Fraud Detection and National Security (FDNS) Directorate “Site Visit” Program to Include Site Visits to L-1 Intracompany Transferee Petitioner’s Worksites

For many years before the Department of Homeland Security was created in 2003, dividing the “legacy” Immigration and Naturalization Service (“INS”) into three separate agencies (“USCIS”, “ICE”, and “CPB”), many immigration activists advocated breaking up the INS, and separating the investigative/ enforcement functions from the adjudicatory functions of handling petitions and applications and other adjudications of benefits. The theory behind the push for separation was that there is an inherent conflict in providing customer services and benefits, while simultaneously treating your “customers” as criminals and liars. The break-up of the INS into three agencies was greeted with cautious optimism, and, as it has turned out, the caution was entirely warranted. In theory, if the USCIS suspected fraud or wrongdoing in the course of their adjudicating an application or a petition, they were supposed to refer the matter to ICE (Immigration and Customs Enforcement) for an investigation, but USCIS believed that they weren’t getting full cooperation from ICE, and that ICE was declining to investigate or quickly closing investigations. Fast forward to July of 2009, and USCIS, using funds gathered from the $500 anti-fraud filing fee surcharge on H-1B and L- 1 petitions, announces the creation of the Fraud Detection and National Security (“FDNS”) Directorate, putting the USCIS back in the investigation and enforcement business; complete with a state-of-the art document forensics lab that would make the FBI jealous. The USCIS website has this explanation of the FDNS Site Visit Program: “The Fraud Detection and National Security (FDNS) Directorate created and implemented the Administrative Site Visit and Verification Program (ASVVP) in July 2009 as part of its ongoing enhancement to the integrity of the immigration benefit process.

What is the ASVVP?

Under the ASVVP, FDNS conducts unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions. USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection. How Are Site Inspections Chosen? FDNS may perform ASVVP site inspections on randomly-selected applications and petitions, both preand post adjudication. ASVVP site inspections are not performed in cases where fraud is suspected, and are generally performed without notice. ASVVP site inspectors do not make decisions on immigration benefit petitions or applications. What are the Site Inspector’s Tasks? ASVVP site inspectors: • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS • Verify the existence of a petitioning entity • Take digital photographs • Review documents • Speak with organizational representatives to confirm the beneficiary’s work location, employment workspace, hours, salary and duties Site inspectors will report the results of their site inspections to FDNS, which will review the information to determine whether the petitioner and the beneficiary have met or continue to meet eligibility requirements. What Happens After an ASVVP Inspection? An FDNS Officer will review the information gathered, and determine whether there is a need to conduct an administrative inquiry. If so, and following that inquiry, FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF). The ISO will use the SOF to determine whether or not the petitioning organization qualifies for the benefit sought. If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.” The FDNS Site Visit Program has been used on all Religious Worker cases, most new H-1B cases, and the USCIS is now expanding the Site Visits to L-1 Intracompany Transferee cases. Petitioners and beneficiaries should note that the FDNS site visits can occur while the petitions are pending before the USCIS, or even after the petitions have been approved. We often hear from H-1B clients many months after their H- 1B petition has been approved that the H-1B employer/petitioner had been contacted by FDNS to arrange a site visit, and one H-1B petitioner received a Notice of Intent to Revoke an approved H-1B petition because the petitioner had just moved to larger offices a block away from the address shown on the H-1B petition, approved 6 months earlier. When the FDNS investigator showed up at the former offices and could not find the petitioner or the beneficiary, the investigator suspected fraud, and the Notice of Intent to Revoke was issued. While we were able to clear up that misunderstanding, it’s important for petitioners and beneficiaries to promptly advise their legal counsel of any changes of address or any other structural, business or job changes BEFORE they occur, so that timely filed amended petitions may be prepared and filed where appropriate. Quick Notes: Now that Customs and Border Protection (“CBP”) has pretty much eliminated the issuance of I-94 Arrival/Departure Record Cards to nonimmigrants admitted to the U.S. in favor of electronic records, it’s critically important to understand the difference between the petition validity dates and dates of authorized stay, which can be different. It’s equally important to visit the CBP website after each nonimmigrant admission/re-admission to the U.S. to review and print-out your official CBP admissions records (https://i94.cbp.dhs.gov/I94/request. html ) to make sure that the official admissions records and date of expiration of authorized stay in the U.S. conforms to the stamps in your passport as well as conforming to what was told to you by the CBP officer at the time of your admission. You would be surprised to learn that there are often significant discrepancies, and the official on-line records are the official records, not the stamp in your passport or your recollection of what was said at the time of your admission. Contrary to popular (but unfounded) rumors, that the Philippines had been approved as a Visa Waiver Program country, this has NOT occurred. This rumor spread fast and was so pervasive that the US Embassy in Manila had to post something on their website, shooting down the rumor, saying that Philippines is not a Visa Waiver Program country, and that there have been absolutely no changes in US Visa Policies for Philippine citizens: http://manila.usembassy.gov/nonim migrant-visa.html From the U.S. Embassy – Manila website:

“IMPORTANT ANNOUNCEMENTS

There has been no change in US visa policy for Philippine citizens wishing to travel to the United States. The Philippines has not been added to the list of countries eligible for participation in the Visa Waiver Program (VWP). If there are any changes regarding VWP-participant countries, the information will be reflected on this website. (Updated on April 23, 2014)

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