In March, 2008, the 8th Circuit held that an individual who checked the box on the I-9 Form given to him by a private employer stating that he was U.S. Citizen was found inadmissible. Despite marrying a U.S. Citizen five years later and claiming that someone instructed him to check the box so that he would be able to work, the petitioner is ineligible for permanent residency. The court reasoned that in checking that he was a U.S. Citizen on his I-9 form to a private employer, the petitioner was fraudulently seeking a benefit under the Immigration and Nationality Act.

To read the case, Rodriguez v. Mukasey, click here.

By Michelle Richart

On March 14, three bills were introduced into the House of Representatives relating to high-skilled visas.

  • Rep. Smith (R-TX) introduced H.R. 5642 which would increase the numerical limitation with respect to H-1B non-immigrants for fiscal years 2008 and 2009.
  • Rep. Kennedy (D-RI) introduced H.R. 5634 which would exempt from numerical limitations any alien who has received a Ph.D. from an institution of higher education within the 3-year period preceding such alien’s petition for special immigrant status.
  • Rep. Giffords (D-AZ) introduced H.R. 5630 which would modify certain requirements with respect to H-1B non-immigrants.

In light of the pending H-1B visa lottery, these bills are critical to employers who hire foreign born professional workers. Contact your congressional representatives now in support of these measures.

AILA InfoNet Doc. No. 08031931 (posted Mar. 19, 2008)

The USCIS announced a new interim rule today that would:

  • Change from 2 days to 5 days the period of time during which cap-subject H-1Bs can be received to be included in any “lottery” that would occur if, as expected, the number of petitions exceeds the quota.
  • Prohibit multiple filings from the same employer for the same employee, even if the filings are for different jobs. The one exception would be that related employers could file separate petitions for the same employee.
  • Result in the denial or revocation (without refund of fees) of any petition found to have been a multiple filing.
  • Change the lottery system so that the 20,000 U.S. advanced degree cap cases are selected first. If any advanced degree cases are left after that process, they would go into the overall 65,000 pool.
  • State that no refunds will be made on cases where someone incorrectly claims a cap exemption.

The USCIS also indicated that it will continue to accept letters from authorized officials of schools indicating that a student has completed the requirements for a degree (i.e., all papers, exams, etc.) and is merely awaiting official conferral of the degree.

For more information, click the links below:

Fact Sheet on Changes to the FY2009 H-1B Program

USCIS Q&A on H-1B Program

USCIS Interim Rule on H-1B Filings

AILA InfoNet Doc. No. 08031933 (posted Mar. 19, 2008)

On March 13, 2008, Director of USCIS, Emilio T. Gonzalez, announced his resignation. To read the story, click here.

To read Michael Chertoff’s comments, from the Department of Homeland Security, click here.

By Michelle Richart

Individuals who are lawful permanent residents often consider whether or not they should apply for U.S. Citizenship through the naturalization process. This application process can see somewhat daunting and there are many things to know and consider before one applies for naturalization. First, of course, there are some requirements for naturalization. Generally speaking, the following are naturalization requirements: 18 years old and a lawful permanent residence for five years, or three years if residency gained through marriage. One can file for naturalization up to 90 days before their time required as a lawful permanent resident has passed. There are some residency exceptions for employees of certain non-profit organizations, employees of the U.S. Government and other related categories;

  • Residence in the USCIS district where one applies for naturalization the three months immediately prior to filing;
  • Continuous residence in the United States from the date of filing for naturalization until the date of admission to citizenship;
  • Ability to speak, read, and write English. However, there are some exceptions for individuals who are over the age of fifty;
  • Good moral character

Second, there are some things that will make one ineligible to naturalize during the statutory period.

  • Habitual drunkard
  • Involved in prostitution
  • Assisting others to enter the country illegally
  • Previous deportation
  • Crimes involving moral turpitude or drug offenses (except for less than 30 grams of marijuana)
  • Two or more gambling offenses or gaining primary income from illegal gambling
  • Giving false testimony for immigration benefits
  • Convicted and confined for 180 days or more
  • Practicing polygamy
  • Failure to support children or other dependents
  • Extramarital affairs which tended to destroy an existing marriage
  • Membership in certain groups sounds as a communist or terrorist group

Someone is permanently barred from naturalizing if they have been convicted of an aggravated felony since November 29, 1990, or of murder at any time. One is also permanently barred if they have requested exemption from military service on account of their alienage or if they were convicted of desertion in the time of war.

On the other hand, someone may be temporarily prevented from naturalizing if they are on probation, parole, or if they have a suspended sentence. USCIS will wait until the individual is finished with their criminal case in order to determine their good moral character, which may delay one’s ability to file for naturalization. Someone who is currently in removal proceedings would also be prevented from naturalizing until that proceeding is terminated and the alien prevails.

It is rare that an individual would be stripped of their U.S. Citizenship once it is obtained. However, if one’s naturalization has been “illegally procured” or if it was obtained by “concealment of a material fact or by willful misrepresentation,” then it is possible that the one can be brought into court and have their naturalization revoked, cancelled, or set aside. This normally can happen if an alien, during their naturalization application process, fails to disclose something which would have prevented their naturalization in the first place. Therefore, it is important to disclose all relevant events and activities upfront.

By Michelle Richart

According to the American Immigration Lawyers Association (AILA), DHS Secretary Chertoff indicated that USCIS and the FBI are changing parts of the name check process, with the expected result that a large proportion of the backlog should be cleared within six months. The Secretary hopes that, in addition to clearing the backlog, most of the kinds of applications and situations that have previously been caught in name check delays will, in the future, be cleared quickly. However, he cautions that some checks still will be delayed by investigations, but that that number should represent a small proportion of the numbers previously delayed. If your I-485 or other application is caught in the name check web, this is great news.

AILA InfoNet Doc. No. 07113061 (posted Nov. 30, 2007)

By Ann Massey Badmus

Many J-1 Exchange Visitors are subject to the two-year home residency requirement. This requirement precludes these visitors from changing to many other nonimmigrant visa categories or adjusting to permanent resident status unless they have spent two years in their home country or country of last permanent residence upon completion of their J-1 program.

There are three categories of J-1 visa holders that are subject to the home residency requirement:

1. Those whose field of training and expertise appears on a Skills List maintained by the State Department.
2. Those who received funding either from their home government, an international organization or a U.S. government agency for the J-1 program.
3. Those who entered the United States to receive graduate medical education or training.

Waivers of the home residency requirement are available in a few situations:

Fulfilling the requirement would result in exceptional hardship to a U.S. citizen or permanent resident alien spouse or child. In order to demonstrate exceptional hardship to a U.S. citizen or permanent resident spouse or child, the J-1 might try and document medical hardship, or persecution of the U.S. citizen or permanent resident if they go to the J-1’s home country, as well as other unusual hardships. Lesser hardships such as spousal separation, separation from children and language problems by themselves are not enough to prove hardship. Rather, the totality of hardship must be measured. A greater degree of hardship must be found in cases involving foreign medical graduates or those receiving U.S. government funding. Also, the hardship must arise both upon a separation of family members and if the family is together in the J-1’s home country.

Fulfilling the requirement will result in persecution to the alien on the basis of race, religion or political opinion. The criteria for a persecution-based waiver are similar to asylum claims; however, the burden of proof in a persecution-based waiver claim is higher than for an asylum claim. Consequently, most people pursue asylum applications rather than a J-1 waiver based on persecution. Furthermore, asylum claims usually lead to permanent residency status while this is often not true for a J-1 waiver. One instance where a persecution-based waiver may be favored is when an asylum claim is unavailable due to the applicant’s waiting longer than a year after entering to apply.
The alien’s home country government indicates no objection to the alien’s remaining in the U.S.

Waivers may be granted if a J-1 visa holder obtains a “no objection” letter from the exchange visitor’s country of nationality or last permanent residence. The “no objection” letter is a formal statement from the home country to the State Department. Most embassies or consulates in the U.S. have officials designated to handle these statements. Note: A “no objection” letter cannot be the basis for a waiver when the exchange visitor came to the U.S. to receive graduate medical education or training.

An interested government agency recommends the waiver as being in the national interest. A statement from a U.S. government agency to the State Department that the granting of a waiver would be in the public interest can also be the basis for a waiver. This is usually available if the agency employs the J-1, but an agency may request a waiver even if it does not employ that individual.

By Ann Massey Badmus

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