On August 2, 2011, the U.S. Embassy in Manila established its Visa Reissuance Program (VRP) to expedite tourist visa renewals for those who previously have been issued multiple entry visas to the United States valid for five years or longer.

Under this program, a Philippine citizen holding a valid tourist visa can apply for re-issuance within 12 months of its expiration date. Visa reissuance applicants will be given a priority appointment date. They only need to appear at the Consular Section of the Embassy at the designated appointment time to submit a valid passport and application confirmation page, and to have their fingerprints digitally scanned. No interview will normally be needed. The applicants can expect to receive their passports with the new U.S. visa within a week of application.

Below are the requirements to be eligible for the visa reissuance program:

• Philippine passport holder
• Previously been issued a B1/B2 visa good for five or ten years
• Visa is still valid or has expired within the last twelve months
• In possession of all passports covering the entire period of time since that most recent full-validity visa
• Have not been refused a U.S. visa in the last twelve months
• Visa is not annotated “clearance received”
• Have not stayed in the U.S. longer than 6 months straight (even if the CIS approved an extension)
• Have not ever been arrested or convicted for any offense or crime, even if subject of a pardon
• Can provide the visa control number from the visa

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On December 14, 2011, President Obama signed the Accreditation of English Language Training Programs Act which requires ESL programs seeking to enroll international students to receive accreditation by a regional or national agency recognized by the Department of Education. The law came into effect 180 days later, on June 12, 2011.

International students enrolling on an ESL school or program who wish to obtain an F-1 visa or status in the U.S. should be careful of potential ESL schools’ accreditation status. They should make sure the schools are accredited before they apply for a change of status or a visa.

The following important dates should be noted:

December 14, 2011: Non-accredited, SEVP-certified English language training programs must submit an application for accreditation to a regional or national accrediting agency recognized by the Secretary of Education by this date.

December14, 2013: If by this date, the non-accredited, SEVP-certified English language training program has not obtained or was denied accreditation, the applicant may not be granted a non-immigrant visa through this sponsoring program.

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On August 8, 2011, the Board of Immigration Appeals (BIA) held that an Immigration Judge may in appropriate circumstances require the  Department of Homeland Security “DHS” to provide the Temporary Protected Status (“TPS”) application that the applicant filed with the United States Citizenship and Immigration Service (“USCIS”).

The respondent in Matter of Henriquez is a native and citizen of El Salvador. He was not admitted or paroled. He filed for TPS with the CIS and the application got denied. At a hearing before the Immigration Court, Respondent renewed his TPS application. The Immigration Judge asked the DHS to provide Respondent’s administrative records, but the DHS submitted a copy of the denial letter and not the TPS application. The Immigration Judge terminated proceedings due to the DHS’s failure to prosecute.

The issue was whether the DHS is required to provide the IJ with the TPS application. The Board mentioned that they have not addressed the issue of what responsibilities, if any, the applicant or the DHS has concerning the production of the application or other documents with respect to the renewed TPS application. The Board also stated that regulations on TPS renewals do not specify whether the DHS or the applicant bears the responsibility of producing these documents.

The Board found that no language in the applicable TPS regulations could be construed to require the applicant to file a new application before the Immigration Judge rather than rely on the application filed with the USCIS. The Board said that the very term “renew” implies a procedure that contemplates production of the previous application. So they will not impose the burden of filing a new application on the applicant. The Board said that they may be cases where the applicant may not have copies of the TPS application and the supporting documents submitted with the CIS. In such case, the only recourse is to ask for a copy of the application form the DHS.

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On June 23, 2011, the Board of Immigration Appeals (BIA) concluded that the derivative child of a finacee visa holder is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 visa.

In Matter of Le, the respondent came to the U.S. with his mother, who became engaged to a U.S. citizen. The K visa petition was approved for the respondent’s mother and respondent, and they subsequently applied for adjustment of status in the United States.  Respondent was 19 years old when he filed his adjustment application.  Eventually, his mother’s adjustment application was approved, however, respondent’s application was denied since he had already reached the age of 18 at the time of his mother’s marriage.  He was therefore determined to be ineligible to adjust status.

The issue was whether a fiancé derivative child who accompanied or followed to join his alien fiancé parent to the United States remains eligible to adjust status, if after satisfying the other statutory requirements, he attains the age of 18 or 21.  The BIA conclude that to adjust based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States.  In this case, the Respondent was 19 years old at the time of admission to the United States, thus, he was allowed to renew his application for adjustment of status.

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The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2011 to June 13, 2011.  As of June 13, 2011, approximately 15,200 H-1B cap-subject petitions were receipted.  Additionally, the USCIS has receipted 10,200 H-1B petitions for foreign workers with advanced degrees (master’s degree or higher).

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According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”  Under the current regulations, the USCIS can adjudicate an adjustment of status application of a parolee with a final order. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

The main issue in Freire case is whether the BIA abused its discretion in denying Freire’s Motion for Remand or Continuance while he sought adjustment of status before the USCIS.  The Second Circuit held that although IJs and the BIA do not have jurisdiction to adjudicate most arriving aliens’ applications for adjustment of status, it does not prevent IJs or the BIA from adjudicating motions for continuance in removal proceedings over which they already have jurisdiction. Though the Second Circuit finds no reason why the request was not granted, it remanded the case to the BIA to at least provide adequate reasons for their refusal. The Second Circuit vacated the decision, and the case is remanded to the BIA.

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The Adam Walsh Child Protection and Safety Act is a federal statute that was signed into law by President George W. Bush on July 27, 2006 to protect children from sexual exploitation and violent crime and to prevent child abuse and child pornography.  Section 402 of the Adam Walsh Act amends section 204 of the INA to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigration petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.  The “specific offense against a minor” includes the following:

• An offense (unless committed by a parent or guardian) involving kidnapping;

• An offense (unless committed by a parent or guardian) involving false imprisonment;

• Solicitation to engage in sexual conduct;

• Use in a sexual performance;

• Solicitation to practice prostitution;

• Video voyeurism as described in section 1801 of Title 18, United States Code;

• Possession, production, or distribution of child pornography;

• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or

• Any conduct that by its nature is a sex offense against a minor.

If a person is subject to the act, he or she must demonstrate to the USCIS that there is no risk to the beneficiary.  Also, this Act removes spouses or fiancés of U.S. citizens convicted of those offenses above from eligibility for the “K” non-immigrant status.

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On May 12, 2011, USICE published an expanded list of STEM degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension.  By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics, and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high-tech sectors of talented scientists and technology experts – permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and extend their post-graduate training in the United States.

Under the current OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the United States and receive training through work experience for up to 12 months.  Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT-STEM extension.

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The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2011 to May 20, 2011.  As of May 20, 2011, approximately 12,300 H-1B cap-subject petitions were receipted.  Additionally, the USCIS has receipted 8,500 H-1B petitions for foreign workers with advanced degrees (master’s degree or higher).

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On May 4, 2011, the Board of Immigration Appeals (BIA) set forth a framework for the Immigration Judge to assess the competency of respondents in removal proceedings and remanded the case, finding good cause to believe the respondent was not sufficiently competent to proceed with the hearing.

Respondent in this case came from Jamaica and was removable on the basis of his conviction for two or more crimes involving moral turpitude.  Respondent had been diagnosed with schizophrenia, and indicated that he needed medication. At the individual hearing, the Immigration Judge denied Respondent’s asylum relief and summarized the respondent’s mental health history.  However, Immigration Judge did not make an explicit finding regarding respondent’s mental competency.

The BIA remanded the case to the Immigration Judge for further proceedings because the Board concluded that the respondent lacked sufficient competency to proceed with the hearing. According to the BIA, the record includes several psychiatric reports that diagnose him with mental illness, and during criminal proceedings, the respondent was found to be unfit to proceed with a trial.  More importantly, the BIA set forth a framework for the IJ to assess the competency of respondents in removal proceedings as below:

• Aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required.
• The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.
• If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings.
• If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate appropriate safeguards.
• Immigration Judges must articulate the rationale for their decisions regarding competency issues.

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