Mica Introduces Proposed Measure to Limit L Visa Privileges

On May 19, Representative John L. Mica (R-FL) introduced in the House of Representatives a proposed measure to limit the usage of the L ‘intracompany transferee’ visa. In this proposed measure, employers would not be allowed to place L visa holders with other employers during the visa holders’ duration of stay in the United States.

When applying for an L visa, employers would be required to file an application with the Department of Labor that directly states that the L visa holder will not “perform duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer”.

The L visa enables international businesses that have offices in the U.S. to transfer employees to the U.S. for short periods of time. L visa applicants are those that have worked with the non-U.S. company either as an executive, manager, or in a position requiring specialized knowledge. Employers are currently able to contract L visa holders out to other companies while these employees are in the U.S. Mica’s proposed measure, which was referred to the House of Representatives’ Committee on the Judiciary, will limit this placement practice.

BCIS Guidance for Prospective Adoptive Parents Regarding Scheduling Fingerprinting

The Bureau of Citizenship and Immigration Services (BCIS) released a memorandum April 7 addressing the procedures for adjudication of the Application for Advance Processing of Orphan Petition (Form I-600A). The memorandum states the following: “In order to best utilize the fifteen month FBI fingerprint check period of validity the adjudicating office should schedule the PAPs [prospective adoptive parents] and all qualifying household members for fingerprinting after the home study has been received.”

BCIS further states that this guidance “was intended to assist both the adjudicating officers and the prospective adoptive parents by PAPs allowing for the fingerprint clearance period to more closely mirror the I-600A validity period.”

However, if PAPs are adopting from a nation where the length of adoption is not substantial, BCIS suggests that it may be best to schedule fingerprinting at the time of filing Form I-600A. In addition, if the office of adjudication takes several weeks to schedule applicants for fingerprinting, the most efficient method may be to schedule fingerprinting at the time of filing Form I-600A, as opposed to after “receipt of the home study”.

BCIS Clarifies Regulations Regarding Waivers of Joint Filing Requirement

A recently released memorandum from the Bureau of Citizenship and Immigration Services (BCIS) was issued to clarify questions regarding filing a waiver of the joint filing requirement prior to final termination of marriage.

The Immigration Marriage Fraud Amendments (IMFA) of 1986 were enacted to counteract attempts at immigration fraud by individuals who chose to marry simply to gain immigration benefits. The IMFA requires a two-year period of conditional residency on all individuals who gain permanent residency status due to marriage. After this two-year period, individuals are required to follow certain procedures to remove this conditional resident status.

According to BCIS, “a conditional resident may have these conditions removed following approval of a petition filed jointly with the citizen or lawful permanent resident spouse, or after approval of a waiver of the joint petitioning requirement (both filed on Form I-751, Petition to Remove Conditions on Residence).”

Many individuals have recently been confused about this amendment and are not sure whether a conditional resident can file a waiver of the joint petitioning requirement during the commencement of divorce proceedings, but prior to the official termination of marriage.

Form I-751 specifically answers this concern:

“You may apply for a waiver of the joint filing requirement on this form if … you entered into the marriage in good faith, but the marriage was later terminated due to divorce or annulment … If you are filing to waive the joint filing requirement because your marriage has been terminated, also submit a copy of the divorce decree or other document terminating or annulling the marriage with your petition.”

In other words, individuals reaching the two-year anniversary of their conditional residency who are in the middle of divorce proceedings may not file for a waiver of the joint filing requirement. If a conditional resident’s status is terminated due to not filing this form, he or she may be placed in removal proceedings. However, the individual may request a continuance from the immigration judge to enable finalization of divorce or annulment proceedings. Individuals will be issue a temporary I-551 while the case is before the immigration judge.

BCIS Clarifies Interpretations of Period of Stay in Determining Unlawful Presence

The Bureau of Citizenship and Immigration Services (BCIS) has seen an increase in multiple filings by alien visitors in cases where these visitors wish to extend stay in the U.S. while petitioning for a change of status. These aliens wish to stay in the U.S. under “legal status” while waiting for adjudication of an immigration benefits application.

According to BCIS, “some immigration practitioners consider the ‘period of stay authorized by the Attorney General’ to be equivalent to ‘status’.” These practitioners believe that because the alien is in status while the BCIS is adjudicating the alien’s application for an extension of stay (EOS) or change of status (COS), that individual can continuously file for EOS or COS, a strategy that would, more or less, enable the alien to stay in ‘lawful status’.

In an effort to clarify these concerns, the BCIS has issued the following response:

1. Where an alien files a timely EOS or COS application and that application is ultimately denied, the alien can begin to accrue unlawful presence beyond the date of the denial regardless of whether the alien files additional, but untimely, requests for EOS or COS that are awaiting adjudication.

2. An EOS or COS application must be filed within the period during which the alien is in an “authorized status” …. The period during which a timely filed EOS or COS application is pending continues the alien’s period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but does not extend the alien’s period of “authorized status”.