F1 Student Visa for High School Students at Public and Private Schools

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All applicants for F1 student visas must demonstrate that s/he:

1.  has a residence in a foreign country which he has no intention of abandoning;

2.  is a bona fide student qualified to pursue a full course of study;

3.  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;

4. has a SEVIS Form I-20 from an ICE approved institution; and

5. can demonstrate financial support or the funds to cover the expenses listed in the SEVIS Form I-20.

In cases where the student intends to study at a public secondary school, the student must demonstrate that s/he has reimbursed the local educational agency that administers the school for the full, unsubsidized per capita cost of providing education at the school for the period of the student’s attendance.  Additionally, the period of attendance must be 12 months or less.  Violation of this restriction can result in a five year bar from entry to the United States INA Section 212(a)(6)(G).  In most cases where a F1 visa holder attends high school in the US, s/he will reside with a host family.  It is a good idea for the host family to execute a limited power of attorney so they may seek medical care or assist in legal matters for the child

An F1 visa applicant’s spouse and minor children may obtain F2 visa status. Children of F1 visa holders in F2 visa status may attend elementary school through 12th grade.  Canadian and Mexican nationals who maintains actual residence and place of abode in their country of nationality may commute to the United States to study at an approved institution.

How to Expedite an I-601 Waiver

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Expediting an I-601 Waiver Requires a Showing of Extraordinary Circumstances

USCIS will only exercise thier discretion to expedite a Form I-601 where an applicant presents a compelling and urgent argument which involves time-sensitive reasons.  In extraordinary circumstances, USCIS will exercise discretion to approve a request to expedite adjudication of a Form I-601.  A simple desire to be reunited with family in the United States is not extraordinary.  Extraordinary circumstances which may persuade the USCIS to expedite the I-601 will contain one or more of the following

  • The applicant has urgent and critical medical needs that cannot be addressed in the applicant’s country;An applicant’s family member in the United States has a life-threatening medical condition and has immediate needs related to that condition for the applicant to assist the family member in the United States;
  • The applicant is faced with urgent circumstances related to the death or terminal illness of a family member;
  • The applicant or qualifying family member is a particularly vulnerable individual due to age or disability;
  • The applicant is at risk of serious harm due to personal circumstances distinct from the general safety conditions of those living in the applicant’s country;
  • It would be in the national interest of the United States to have the applicant in the United States (for example, the applicant’s presence in the United States is urgently required for work with a U.S. government entity); or
  • As described in a request from or for a member of the Armed Forces of the United States:
    • The applicant’s qualifying family member is a member of the military who is deployed or will soon be deployed; and
    • The applicant demonstrates that, in light of the deployment there are compelling reasons to expedite the request due to the impact of the applicant’s absence from the United States on the applicant, the qualifying family member, or their children, if any.

The USCIS will review all request to expedite within 5 business days of their submission and will notify the applicant within 10 business days if their request is granted.  It is unlikely that USCIS will entertain a second request to expedite so it is essential that the first request be as compelling as possible.

212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude or CIMT

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212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude or CIMT

Inadmissibility Series INA 212– Part II

212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude or CIMT

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States.  Some classes are complete bars and others allow specific types of waivers of inadmissibility.  If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card.  There are many ways a foreign national may be deemed inadmissible.  The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States.  In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination.  You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows.  In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude or CIMT

In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime).

212(a)(2)(A)(i)(I) CIMT List or List of Crimes Involving Moral Turpitude

The Immigration and Nationality Act does not provide a CIMT list.  However, the Foreign Affairs Manual (FAM) does provide a list of the type of crimes which are commonly CIMT.

According to 9 FAM 40.21(a) N2.2, a crime is likely a CIMT if an element of the crime includes fraud, larceny or intent to harm persons or things.

9 FAM 40.21(a) N2.3-1 lists common crimes against property that are considered CIMT

a. Most crimes committed against property that involve moral turpitude include the element of fraud. The act of fraud involves moral turpitude whether it is aimed against individuals or government. Fraud generally involves:
(1) Making false representation;
(2) Knowledge of such false representation by the perpetrator;
(3) Reliance on the false representation by the person defrauded;
(4) An intent to defraud; and
(5) The actual act of committing fraud
b. Other crimes committed against property involving moral turpitude involve an inherently evil intent, such as the act of arson. The following list comprises crimes frequently committed against property, which may be held to involve moral turpitude for the purposes of visa issuance:
(1) Arson;
(2) Blackmail;
(3) Burglary;
(4) Embezzlement;
(5) Extortion;
(6) False pretenses;
(7) Forgery;
(8) Fraud;
(9) Larceny (grand or petty);
(10) Malicious destruction of property;
(11) Receiving stolen goods (with guilty knowledge);
(12) Robbery;
(13) Theft (when it involves the intention of permanent taking); and
(14) Transporting stolen property (with guilty knowledge).
c. Crimes against property which do not fall within the definition of moral turpitude include:
(1) Damaging private property (where intent to damage not required);
(2) Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude);
(3) Passing bad checks (where intent to defraud not required);
(4) Possessing stolen property (if guilty knowledge is not essential);
(5) Joy riding (where the intention to take permanently not required); and
(6) Juvenile delinquency.

9 FAM 40.21(a) N2.3-2 lists common crimes against government authorities that are CIMT

a. Crimes committed against governmental authority which fall within the definition of moral turpitude include:
(1) Bribery;
(2) Counterfeiting;
(3) Fraud against revenue or other government functions;
(4) Mail fraud;
(5) Perjury;
(6) Harboring a fugitive from justice (with guilty knowledge); and
(7) Tax evasion (willful).
b. Crimes committed against governmental authority, which would not constitute moral turpitude for visa-issuance purposes, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent. The following list assumes that the statutes involved do not require the showing of an intent to defraud, or evil intent:
(1) Black market violations;
(2) Breach of the peace;
(3) Carrying a concealed weapon;
(4) Desertion from the Armed Forces;
(5) Disorderly conduct;
(6) Drunk or reckless driving;
(7) Drunkenness;
(8) Escape from prison;
(9) Failure to report for military induction;
(10) False statements (not amounting to perjury or involving fraud);
(11) Firearms violations;
(12) Gambling violations;
(13) Immigration violations;
(14) Liquor violations;
(15) Loan sharking;
(16) Lottery violations;
(17) Possessing burglar tools (without intent to commit burglary);
(18) Smuggling and customs violations (where intent to commit fraud is absent);
(19) Tax evasion (without intent to defraud); and
(20) Vagrancy.

9 FAM 40.21(a) N2.3-3 lists common crimes against a person, family relationship and sexual morality

a. Crimes committed against the person, family relationship, and sexual morality, which constitute moral turpitude as it relates to visa issuance, include:
(1) Abandonment of a minor child (if willful and resulting in the destitution of the child);
(2) Adultery (see INA 101(f)(2) repealed by Public Law 97-116);
(3) Assault (this crime is broken down into several categories, which involve moral turpitude):
(a) Assault with intent to kill;
(b) Assault with intent to commit rape;
(c) Assault with intent to commit robbery;
(d) Assault with intent to commit serious bodily harm; and
(e) Assault with a dangerous or deadly weapon (some weapons may be found to be lethal as a matter of law, while others may or may not be found factually to be such, depending upon all the circumstances in the case. Such circumstances may include, but are not limited to, the size of the weapon, the manner of its use, and the nature and extent of injuries inflicted.);
(4) Bigamy;
(5) Contributing to the delinquency of a minor;
(6) Gross indecency;
(7) Incest (if the result of an improper sexual relationship);
(8) Kidnapping;
(9) Lewdness;
(10) Manslaughter:
(a) Voluntary, occurs when a person intentionally kills another person after “adequate provocation”; that is, there has been action that was sufficient to incite an “ordinary person” to “sudden and intense passion” such that s/he loses self-control. It should be noted that the time between provocation and the killing should not be long enough for the passion to have cooled off. In most states, “adequate provocation” is defined to be only situations in which there is a threat of deadly force, or in which a person finds his/her spouse in bed with another person. Verbal threats are usually not considered adequate provocation; and
(b) Involuntary, where the statute requires proof of recklessness, which is defined as the awareness and conscious disregard of a substantial and unjustified risk which constitutes a gross deviation from the standard that a reasonable person would observe in the situation. A conviction for the statutory offense of vehicular homicide or other involuntary manslaughter that only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly.
(11) Mayhem;
(12) Murder;
(13) Pandering;
(14) Prostitution; and
(15) Rape (By statute, a person may be convicted of statutory rape even though the victim consents and provided she or he is under the statutory age at the time of the commission of the act. “Statutory rape” is also deemed to involve moral turpitude.)
b. Crimes committed against the person, family relationship, or sexual morality which do not involve moral turpitude include:
(1) Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly);
(2) Illegitimacy (i.e., the offense of begetting an illegitimate child);
(3) Creating or maintaining a nuisance (where knowledge that premises were used for prostitution is not necessary);
(4) Incest (when a result of a marital status prohibited by law);
(5) Involuntary manslaughter (when killing is not the result of recklessness);
(6) Libel;
(7) Mailing an obscene letter;
(8) Mann Act violations (where coercion is not present);
(9) Riot; and
(10) Suicide (attempted).

9 FAM 40.21(a) N2.4 lists common crimes involving aiding and abetting, accessories and conspiracy

a. The following types of crimes are held to be crimes involving moral turpitude:
(1) An attempt to commit a crime deemed to involve moral turpitude;
(2) Aiding and abetting in the commission of a crime deemed to involve moral turpitude;
(3) Being an accessory (before or after the fact) in the commission of a crime deemed to involve moral turpitude; or
(4) Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude.
b. Conversely, where an alien has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA 212(a)(2)(A)(i)(I) would not be applicable.

How to obtain a determination that the 212(a)(2)(A)(i)(I) ground of inadmissibility was incorrectly made.

No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude or CIMT

There is only one section of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

INA 212(h) – The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status.
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or

(C) the alien is a VAWA self-petitioner; and

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.

Waiver of Inadmissibility for a Non Immigrant Visa due to 212(a)(2)(A)(i)(I) Crime Involving Moral Turpitude or CIMT

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again.  This is simply not true.  For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination.  We have successfully helped many clients who were determined to be inadmissible and we can assist you.  We believe that with the right approach, there is always a hope to win your case.

New USCIS Fees Go Into Effect on November 23, 2010

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Following up the USCIS’s June 11, 2010 announcement of their plan to increase fees, USCIS fees are increasing as of November 23, 2010.  The new fee schedule will be as follows:

Form No. Application/Petition Description Existing Fees (effective through Nov. 22, 2010 Adjusted Fees (effective beginning Nov. 23, 2010)
I-90 Application to Replace Permanent Resident Card $290 $365
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document $320 $330
I-129/129CW Petition for a Nonimmigrant Worker $320 $325
I-129F Petition for Alien Fiancé(e) $455 $340
I-130 Petition for Alien Relative $355 $420
I-131 Application for Travel Document $305 $360
I-140 Immigrant Petition for Alien Worker $475 $580
I-191 Application for Advance Permission to Return to Unrelinquished Domicile $545 $585
I-192 Application for Advance Permission to Enter as Nonimmigrant $545 $585
I-193 Application for Waiver of Passport and/or Visa $545 $585
I-212 Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal $545 $585
I-290B Notice of Appeal or Motion $585 $630
I-360 Petition for Amerasian, Widow(er), or Special Immigrant $375 $405
I-485 Application to Register Permanent Residence or Adjust Status $930 $985
I-526 Immigrant Petition by Alien Entrepreneur $1,435 $1,500
I-539 Application to Extend/Change Nonimmigrant Status $300 $290
I-600/600A

I-800/800A

 Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of Orphan Petition $670 $720
I-601 Application for Waiver of Ground of Excludability $545 $585
I-612 Application for Waiver of the Foreign Residence Requirement $545 $585
I-687 Application for Status as a Temporary Resident under Sections 245A or 210 of the Immigration and Nationality Act $710 $1,130
I-690 Application for Waiver of Grounds of Inadmissibility $185 $200
I-694 Notice of Appeal of Decision under Sections 245A or 210 of the Immigration and Nationality Act $545 $755
I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) $1,370 $1,020
I-751 Petition to Remove the Conditions of Residence $465 $505
I-765 Application for Employment Authorization $340 $380
I-817 Application for Family Unity Benefits $440 $435
I-824 Application for Action on an Approved Application or Petition $340 $405
I-829 Petition by Entrepreneur to Remove Conditions $2,850 $3,750
I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–110) $285 $285
I-907 Request for Premium Processing Service $1,000 $1,225
Civil Surgeon Designation $0 $615
I-924 Application for Regional Center under the Immigrant Investor Pilot Program $0 $6,230
N-300 Application to File Declaration of Intention $235 $250
N-336 Request for Hearing on a Decision in Naturalization Proceedings $605 $650
N-400 Application for Naturalization $595 $595
N-470 Application to Preserve Residence for Naturalization Purposes $305 $330
N-565 Application for Replacement Naturalization/Citizenship Document $380 $345
N-600/600K Application for Certification of Citizenship/ Application for Citizenship and Issuance of Certificate under Section 322 $460 $600
Immigrant $0 $165
Biometrics Capturing, Processing, and Storing Biometric Information $80 $85

The DREAM Act is Back! (Maybe)

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Senator Harry Reid has announced via his blog that he will add the DREAM Act a military spending bill later next week.  In a statement, Senator Reid acknowledged that passage of comprehensive immigration reform is unlikely but that passage of the DREAM Act may gain traction in the House

“I know we can’t do comprehensive immigration reform,” Reid said at a news conference. “But those Republicans we had in the last Congress have left us.”

The previous versions of the DREAM Act and American Dream Act would make certain undocumented students eligible for a six-year conditional permanent resident status upon high school graduation. These students could then apply to have the conditional basis of their permanent residence status lifted after completing at least two years of higher education or serving for at least two years in the US military.

The bills would also repeal section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), which requires states that provide the in-state tuition rate to undocumented students to provide the same tuition rate to out-of-state residents.

In the newest version to be proposed by Senator Reid, there are slight changes.

We are also offering an amendment to pass the DREAM Act. This amendment will ensure that millions of children who grow up as Americans will be able to get the education they need to contribute to our economy. Students who come to America before age 16 and who have been here for five years should be able get their green card after they go to college or serve in the military. And many who have volunteered to defend our country can finally become citizens of it.

212(a)(6)(C)(i) Fraud or Misrepresentation

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212(a)(6)(C)(i) Fraud or Misrepresentation

Inadmissibility Series INA 212– Part I

212(a)(6)(C)(i) Fraud or Misrepresentation

Section 212 of the Immigration and Nationality Act of 1952 lists a series of classes of foreign nationals who are inadmissible to the United States.  Some classes are complete bars and others allow specific types of waivers of inadmissibility.  If you are attempting to enter the Unites States or are already in the United States and you are inadmissible then you will be barred from receiving immigration benefits such as a visa or green card.  There are many ways a foreign national may be deemed inadmissible.  The three most common ways are when he or she applies for a visa at a US Consulate, attempts to enter the US with a visa or applies for an immigration benefit while in the United States.  In making one of these types of immigration applications, an immigration officer can make a determination that the foreign national’s past actions make him or her inadmissible or ineligible for benefits.

If an immigration officer determines that you are inadmissible then you have two options to overcome the determination.  You can either challenge the determination of inadmissibility or apply for a waiver of inadmissibility if the law allows.  In many cases. challenging the determination of inadmissibility is the only option because the foreign national is either not eligible for a waiver or the law does not offer a waiver.

212(a)(6)(C)(i) Fraud or Misrepresentation

In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

How to obtain a determination that the 212(a)(6)(C)(i) Fraud or Misrepresentation ground of inadmissibility was incorrectly made.

No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.

Waiver of Inadmissibility for an Immigrant Visa due to 212(a)(6)(C)(i) Fraud or Misrepresentation

There are two sections of law which allow a foreign national to apply for a waiver of inadmissibility where he or she is ultimately applying for an immigrant visa or permanent residence (green card).

INA 212(i) – The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien 25b/ or, in the case of a VAWA self-petitioner 6aa/ , the alien demonstrates extreme hardship to the alien or the alien’s United States citizen, lawful permanent resident, or qualified alien parent or child.

INA § 237(a)(1)(H) – The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

Waiver of Inadmissibility for a Non Immigrant Visa due to 212(a)(6)(C)(i) Fraud or Misrepresentation

INA 212(d)(3) – Except as provided in this subsection, an alien (i) 20b/ who is applying for a non immigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General, or (ii) 20b/ who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), 20a/ and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a non immigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

If you have been determined to be inadmissible, we can help you overcome the determination or obtain a waiver

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again.  This is simply not true.  For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination.  We have successfully helped many clients who were determined to be inadmissible and we can assist you.  We believe that with the right approach, there is always a hope to win your case.

Please feel free to contact us at 305-515-0613 or email us at info@messersmithlaw.com if you’d like our assistance.

Political Asylum Series: India

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Political Asylum – Part I

Spotlight: India

I’m going to introduce a new segment to my blog readers.  Many current and potential clients contact me or my office to discuss whether or not they have a legitimate claim to asylum in the United States.  I am going to start a series on this blog to discuss previous asylum applications and the applicant’s country of origin so you can use these posts to help yourself determine if asylum is a possibility for you

This asylum post will cover asylum applications where the applicant is of Indian origin.

Political Asylum Requirements

Foreign nationals in the US who are unable or unwilling to return to their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social or political group may obtain asylum.

Examples of Successful US Asylum Cases Made by Indian Nationals

  • A married women who contracted HIV and fears her family will disown her or force her to get a divorce;
  • A couple who had an interfaith marriage, Hindu and Sikh;
  • Tamil males between the ages of 15 and 45;
  • A son whose father made a political speech which resulted in the father being beat up by the Bhindrawala Tiger Force (BTF); and
  • A Sikh man accused of supporting Sikh separatists and beaten and arrested by the Indian police.

We can help you win your asylum claim and obtain permanent residency (green card) in the US

Many Indian nationals have credible fear of persecution in India that can lead to an asylum approval.  However, most asylum cases are denied due to applicants failure to articulate their fear and document events that have led to that fear.  We have successfully helped many Indian clients and we are familiar with many circumstances that can lead to a successful asylum claim.  In our experience, most asylum applications are adjudicated in 3-6 months.  It is best, but not mandatory, to file your asylum application within the first 12 months of your entry to the US and while you have a valid immigration status such as a visitor or work visa.   We understand the fear and the pain you’re going through and we’ll make sure that your asylum process is as painless as possible.

USCIS Filing Fees on the Rise Again!

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On August 13, 2010, President Obama signed Public Law 111-230 into law which dramatically increases H1B and L1 filing fees for certain US companies.  The new law went into effect immediately and though Form I-129 has not yet incorporated the new law into the form, all US petitioning companies must disclose whether they are subject or not.

The new law requires additional filing fees of $2,000 for H1B visa petitioner and $2,250 for L1A and L1B petitions where the US petitioning company employs 50 or more employees in the United States and more than 50 percent of its employees in the United States are in H-1B or L visa status.  Petitioners with fewer than 50 employees or those who employ primarily non H1B or L visa workers will not be affected.

However, all applicants will be affected by USCIS’s plan to raise all other filing fees.  On June 11, 2010 USCIS announced their plan to raise fees across the board an average of 10%.  This prospective fee increase is still in the public comment stage but is expected to go into effect shortly.  The agency stated that the fees needed to be increased to offset lost revenue from fewer applications being filed.  This is in sharp contrast to their previous reasoning when they raised fees in 2007 to increase staffing to adjudicate applications faster.

The bureaucracy is expanding to meet the needs of the expanding bureaucracy. – Unknown

H1B Visa Extensions Beyond the Six Year Limitation

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The maximum duration for status as an H1B visa holder is six years.  Any time spent in L status or other H status such as H2B or H4 visa status is included.  Normally, a foreign national who wishes to hold H1B visa status beyond the six year maximum is prohibited unless he or she spends at least one year outside of the US before re-entering in H1B visa status.  This six year limited does not apply in the following cases:

  • The H1B visa holder is working on a certain US Department of Defense project; or
  • Where the work is seasonal or intermittent or is in the US for less than six months out of the year.

There are three strategies which can be used to overcome the six year limitation.

  • AC21 Extensions in One Year or Three Year Increments AC 21 104(a)

An H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year.  Additional extensions may be granted until a decision has been made on the I-485.

  • AC21 Extension in Three Year Increments AC 21 106(c)

An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments.

  • Recapturing Time Spent Outside the US

While this really won’t get you around the six year limit, it does allow an H1B holder to apply for an H1B extension and “recapture” days spent outside of the US.  If the H1B visa holder was outside the US for 61 days in the 6 years they held H1B status, they can recapture those days in an H1B extension application.