By: Thomas J. Joy, Esq.

This is the first in a series of articles that will focus on practical issues and problems that arise before and during processing of immigrant visas at US embassies and consulates. The advice and suggestions contained herein are based on over 30 years of experience reviewing documents and preparing applicants for their immigrant visa interviews. The current topic is birth certificates and related issues.

Generally, a certified copy of a birth certificate issued by the registrar of birth records of the place of birth is required to be submitted at the immigrant visa interview for each person. In most cases, the required document is readily available and easily obtained.   However, certain situations require special attention. For example, in the UK, the long-form birth certificate must be requested because the short-form birth certificate does not contain the names of the parents.   In cases where birth certificates from the authorities are unavailable or contain insufficient information regarding the birth or the parents (most commonly in India), a sworn affidavit executed by either of the parents, if living, or other close relatives older than the applicant, may be submitted.   It should set forth the relationship between the deponent and the applicant, how well the deponent knows the applicant, date and place of the applicant's birth, the names of both parents, and any other related facts.   Such an affidavit, when a birth certificate is unavailable, must generally be accompanied by a document from a competent governmental authority confirming that the birth certificate does not exist, or no longer exists.  

A stepchild is treated the same as a natural child as long as a marriage certificate is submitted of the stepparent to the child's natural parent showing that the marriage occurred before the child's 18th birthday.  

An adopted child is treated the same as a natural child as long as there is submitted the adoption decree showing that the adoption took place before the child's 16th birthday.      

Validity issues or the existence of birth certificates, adoption decrees, and other important qualifying documents can arise. Obviously, it's best to be aware of these problems sooner, rather than years later. Additionally, it can be increasingly difficult to obtain birth certificates and certain affidavits to verify a birth or marriage if an older relative passes away. For these reasons, Immigration Compliance Group's advises that you plan well in advance, and have your immigration attorney review your existing documentation and start whatever process is necessary well in advance of your immigrant visa interview.

2. Update on Retrogression

By:   Thomas J. Joy, Esq.

The U.S. Department of State recently released the March 2008 Visa Bulletin, which indicates the availability of immigrant visas (green cards) for the month of March 2008. Dramatic advances in the cut-off dates occurred in the EB-3 category (the category that covers nurses) for Philippines (more than 2 years), India (almost 3 months) and all countries except China, India, Mexico and Philippines (more than 2 years). This sudden advance in the cut-off dates is an effort by the State Department to guarantee that the full annual quota of immigrant visas is used before the end of the current fiscal year (September 30, 2008).   In addition, the State Department, by making more immigrant visas available earlier in this fiscal year, is attempting to avoid the chaos and confusion that resulted near the end of the last fiscal year in July 2007 when the remaining supply of unused immigrant visas were suddenly made available to all countries in all categories. It must be noted, however, that the March 2008 Visa Bulletin warns that if the expected increase in immigrant visa usage materializes; future cut-off date movements could slow or stop.

We remain hopeful that new laws will be enacted soon to decrease the present waiting periods for nurses to immigrate to the United States. We base our hope on the fact that the current critical shortage of nurses in the U.S. demands immediate action so that the U.S. healthcare system can continue to operate effectively. In addition, in the past, new laws have been enacted to address the shortage of nurses in the U.S. by allowing more foreign nurses into the U.S. Finally, several legislative solutions have been and continue to be proposed and debated.

Various groups of healthcare employers, nurse recruiting companies, and related entities and persons are presently lobbying for a legislative solution. The present focus is on short-term immediate relief for nurses. In addition, long-term permanent relief is being pursued. Specific proposals include exempting nurses from the annual immigrant visa quota restrictions, increasing the number of immigrant visas available in the EB-3 quota category that applies to nurses, and creating a new nonimmigrant visa to allow nurses to come to the U.S. immediately to start work while waiting for the immigrant visa process ("green card") to be completed. Hospitals and nurse recruiters in the U.S. are encouraged to contact their Senators and Congressmen to express their support for these legislative efforts to relieve the current shortage of nurses in the U.S. by speeding up the process to bring foreign nurses to the U.S.  

We continue to follow these issues on a daily basis and will keep you advised.  
Contact Your Senator Today!

3. USCIS to Move Forward on I-485's Delayed by FBI Name Checks

The USCIS announced in a new Q&A memorandum that it will begin processing adjustment of status applications that have been delayed due to long-overdue FBI name clearances. It is estimated that 10,000 applications are in the queue and are awaiting overdue name check clearances. USCIS projects that these cases should be processed by mid-March 2008, but will undoubtedly take longer as they start unearthing the cases that have been on hold in the system.

The new policy will now permit I-485 Adjustment Application to be approved IF an FBI name check has been pending for more than 180 days, as long as there are no other reasons not to approve the application. Holdups because of name checks have been the leading cause of delayed approvals, waiting indefinitely for a clearance to be complete before adjudicating the applications. Thousands have been caught in this nightmare for years.

The new policy does not affect any of the other background checks required for adjustment applications, including FBI fingerprint clearances and cross-checks from other government databases. These will proceed as usual and any negative information must be resolved before an adjustment can be approved.  

It has been indicated that many applicants that have long-standing applications may be required to have new fingerprints taken and pass a new clearance because FBI print results expire after 15 months.

For more information on USCIS moving forward on I-485's:
Read this press release from the USCIS

4. Long Delays Expected for Citizenship Applicants

In an appearance in late January at the California governor's mansion, USCIS director Emilio Gonzalez, said immigrants who are waiting to become U.S. citizens are being told "not to get their hopes up", and that the long delays in citizenship applications will be shortened.  

The USCIS reported that, in July and August of 2007, the agency received about 2.5 million total applications and petitions. This is double the typical number for a two-month period. The number of citizenship applications in fiscal year (FY) 2007, 1.4 million, is more than the USCIS received in the years 2005 and 2006 combined.

The agency predicts that the citizenship applications filed after July might take almost three times longer to process than last year. The wait times for citizenship approval have been extended from a seven-month average wait period to almost 18 months in some cities. Gonzalez said the dramatic surge in applications, right before citizenship fees increased 69 percent, from $400 to $675 on July 30, is to blame.  

While this remains a frustrating situation, it should not deter eligible applicants from filing for naturalization. It means that greater patience will be required. Of course, it is possible that the N-400s could become the focus of a backlog reduction effort in the future.

For more information on the expected long delays:
Read this news release from the new Civics & Citizenship Toolkit

5. USCIS Application and Reciepting Update

The USCIS is advising customers that the processing of fee payments and case entry into the tracking system is behind schedule because of the massive increase in the number of applications filed. Because of this, applicants are experiencing long delays in receiving receipt notices. USCIS has said they are working efficiently as possible to deal with the tremendous increase in volume.

Date Received in Mailroom -- The USCIS has said they will honor the actual date that an application was received in the mailroom; the date indicated on the receipt in the Received Date box. If your case is affected by the receipt delay, arrival of your receipt may take up to 12 weeks for adjustment-of-status applications and 15 weeks for naturalization and other applications.  

Weekly Updates on Receipting - Until the volume of applications is reduced, USCIS will continue to provide weekly updates on progress in issuing receipt notices to customers.  

Applications Received Prior to Posted Receipting Dates - If your application was received by the USCIS before the posted dates and you still have no receipt - please call USCIS Customer Service toll-free at 1-800-375-5283.

For more information on the USCIS Reciepting Update:
Read this press release from USCIS.

6. Are You in this Country Legally?

The police in Phoenix, AZ will soon be asking all people arrested whether they are in the United States legally, and will in certain cases, report the information to the federal authorities, Mayor Phil Gordon announced said two weeks ago.

People stopped for civil traffic violations, like speeding, will NOT be questioned, nor will crime victims or witnesses.  

Those arrested on criminal charges like drunken driving and murder will be asked by police whether they are in the country legally.  

The program separates itself from a policy that is more than 10 years old that bars officers from asking people about their legal status in most cases. The police normally avoid questions like this, in fear of racial profiling and discouraging immigrants from cooperating with the police.

Phoenix is a sanctuary for illegal immigrants - the city is 200 miles from Mexico.

For more information on the new program in Phoenix, AZ:
Read this article from the New York Times.

7. Enrollment in E-Verify Rising by 1,000 Each Week

The federal government's employment authorization verification program, E-Verify, has had more than 52,000 employers sign up to participate. The program has been growing by 1,000 new employers each week since last October.

E-Verify is a web-based system that allows participating employers to verify the employment eligibility of newly hired employees electronically. E-Verify evolved from the pilot program originally developed in 1997, and was made a web-based program in 2004. USCIS operates the program in partnership with the Social Security Administration.

Participation in E-Verify is voluntary, however, a number of states require certain employers to participate in and comply with a federal work authorization verification program. Such as in Arizona, where a law requires all employers in the state to verify the employment eligibility of any newly hired workers through E-Verify.  

For more information on the rising enrollment in the E-Verify program:
Read this press release from USCIS.

8. HR Group Challenges State Immigration Bills

Lawmakers in two states are being pressured by several HR organizations to reject legislation that would affect how employers verify the employment eligibility of new hires.

The HR Initiative for a Legal Workforce is opposing legislation in Kansas that would require employers to use the E-Verify program, an Internet based system that allows employers to verify the eligibility status of newly hired employees.

The group opposes the legislation because they say the E-Verify program was established as a voluntary pilot program, and is not well equipped to handle a massive influx of users. The group also says the database has a 4.1 percent error rate.

In Wisconsin, the group is urging lawmakers to reject an order of legislation that would ultimately penalize employers for hiring unauthorized workers.  

For more information on HR groups challenging state immigration bills:
Read this article from HR.BLR.com

9. Judge Upholds Arizona Immigration Law

A U.S. District judge in Phoenix has upheld an Arizona law that allows the state to seek the suspension and revocation of business licenses of employers that intentionally employ workers who are unauthorized to work in the United States.

Beginning January 1, 2008, Arizona law prohibits employers from knowingly hiring an unauthorized alien. It also requires the employer to use the E-Verify tracking system, to verify employment eligibility of a newly hired employee.

The U.S. District Judge Neil Wake ruled that the federal immigration Reform and Control Act allows state licensing sanctions like the one in Arizona. This is in response to the various business groups who oppose the law, saying it denied them due process.

Wake countered the measure and said that the state law provides employers with procedural due process.

For more information on the new sanction:
Read this article from The San Jose Mercury News