In a 6-3 ruling in U.S. Department of State et al v. Munoz et al (Case Number 23-334), the Supreme Court of the United States (SCOTUS) reaffirmed the doctrine of consular nonreviewability ruling against a U.S. citizen’s spouse who argued that the federal government violated her due process rights by denying her Salvadoran spouse an immigrant visa based on an approved family-based petition. The doctrine of consular nonreviewability holds that because the INA fails to authorize judicial review of consular decisions denying visas, federal courts do not have the authority to review visa denials.
In Munoz, SCOTUS held that U.S. citizens do not have a constitutional fundamental liberty interest in their non-citizen spouse’s ability to be admitted to United States, moreover, that U.S. citizens are not constitutionally entitled to review of denied visas as they could not raise this issue indirectly in their spouse’s case.
Ms. Munoz, a U.S. citizen, and her non-citizen spouse of over 10 years, Mr. Munoz, were forced to live apart for several years. Mr. Munoz was denied a visa following several interviews and without any explanation other than a broad reference to section 212(a)(3)(A)Iii) of the Immigration and Nationality Act (INA), which makes an individual inadmissible if the consular officer “knows, or has reasonable ground to believe” that the individual seeks to enter the United States to engage in unlawful activity. Ms. Munoz eventually guessed (correctly) that the Consulate believed her husband was a member of MS-13, a transnational criminal gang, due to his tattoo. Mr. Munoz asked the Consulate to reconsider its visa denial, but the Consulate denied this request. The couple then filed a federal lawsuit against the Consulate and the Department of State (DOS), arguing, inter alia, that the government had abridged Ms. Munoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason he was inadmissible under the cited INA provision. The District Court granted summary judgment in favor of DOS after DOS admitted the denial was in fact based on a consular officer’s determination that Mr. Munoz had religious tattoos that looked like gang logos. Thereafter, the Ninth Circuit Court of Appeals vacated the judgment, which brought the case next to the U.S. Supreme Court.
In its ruling, SCOTUS indicated that the “’the Due Process Clause specially protects’ only ‘those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.’” While Munoz invoked the fundamental right to marriage, SCOTUS concluded that Ms. Munoz was in fact claiming something different – the right to reside with her non-citizen spouse in the U.S. And that, SCOTUS concluded, is not a right deeply rooted in the nation’s history. Indeed, the country’s history instead recognizes instead the government’s sovereign authority to set the terms of admission and exclusion. SCOTUS also noted that while Congress has made some specific exceptions for spouses, Congress has not made spousal immigration a matter of right.
In its decision, SCOTUS distinguished an earlier case, Kerry v. Din, 576 U.S. 86 (2015) where in a concurring opinion, Justice Anthony Kennedy assumed that a U.S. citizen would have a liberty interest that would be burdened by a spouse’s visa denial and was therefore entitled to more information than a simple citation explaining the denial. In that case, Justice Kennedy was referring to the fact that a U.S. citizen should have some right to question a denial of a spouse’s visa because there could be “bad faith” denial.
Some advocates are concerned that SCOTUS’ opinion in Munoz could lead to unnecessary family separations and subject U.S. citizen spouses to arbitrary decisions by consular officers, denying them the opportunity to build their lives together with their spouses in the U.S. Moreover, this decision casts fear and uncertainty on non-citizen spouses who have an approved family-based petition who must leave the country temporarily to process their immigrant visas abroad – not knowing whether a consular officer may erroneously deny their visa. Ultimately, SCOTUS’ decision may force U.S. citizen spouses to leave the U.S. so they can live with their spouses abroad – without having had the ability to challenge a potentially erroneous visa denial by a consular officer.

https://www.supremecourt.gov/docket/docketfiles/html/public/23-334.html

https://supreme.justia.com/cases/federal/us/602/23-334/

VAWA self-petition FY 2021 Annual Report and Approval/Denial Rate:

The Violence Against Women Act (VAWA) law allow certain spouses, children, and parents of abusive U.S. citizens and certain spouses and children of abusive Lawful Permanent Residents (LPRs) to petition for immigration benefits without the abuser’s participation or knowledge (self-petition).

Self-petitioners must establish that they:
(1) have or had a qualifying relationship with the abuser;
(2) are eligible for immigrant classification as an immediate relative or certain family sponsored preference categories;
(3) resided with the abuser;
(4) have been subject to battery or extreme cruelty during the qualifying relationship;
(5) are a person of good moral character; and
(6) entered into the marriage in good faith (for self-petitioning spouses only).

In FY 2021, I-360 VAWA self-petition Approval Rate varied greatly between the three groups of the applicants:

(1) 70% for the spouses of the abusing US citizens and permanent residents. (70 % or 6,412 petitions approved and 30% or 2,712 petitions denied).

(2) 42% for children of the abusive USC or LPR parents,

(3) 23% for parents of the abusive USC or LPR child.

​On average, a VAWA self-petition filed by an abused spouse adjudicated by USCIS in FY 2021 was pending for about 25 months,
a VAWA self-petition filed by an abused child adjudicated by USCIS in FY 2021 was pending for
about 25.1 months,
and a VAWA self-petition filed by an abused parent adjudicated by USCIS in FY 2021 was pending for about 20.8 months. The report is here.

The processing times are calculated using the date of receipt by USCIS and the date of the adjudication (i.e., approval or denial). Not all self-petitions adjudicated in FY 2021 were received in FY 2021; as such, VAWA self-petitions adjudicated in FY 2021 do not necessarily represent petitions received by USCIS in
FY 2021.

​See the FY 2021 report here.

Since 2004, we help our clients in VAWA cases. To schedule an appointment with an immigration attorney, please email us to schedule. 

Briefly in Russian:

По статистике за 2021 фискальный год. USCIS утвердили I-360 VAWA петиции в трех основных категориях:

(1) 70 % утвердили для жен и мужей абьюзеров

(2) 42 % утвердили для родителей абьюзеров

(3) 23 % утвердили детей абьюзеров.

Разница по статистике огромная - от 70 до 23 процентов.

Сроки рассмотрения этих гуманитарных петиций в 2021 составляли от 20 до 25 месяцев. В 2022 сроки остались приблизительно на таком же уровне.

Если вам нужна помощь с петицией ВАВА, мы будем рады вам помочь. Мы глубоко специализируемся в этой категории дел с 2004 года.

Для контакта с адвокатом по делу ВАВА, свяжитесь с нами по email.

Using marijuana for any reason, even without a conviction, can result in denial of your green card application, either through adjustment of status in the United States (I-485) or through consular processing abroad.

Using marijuana can result in being considered inadmissible - could be under both health related and criminal related grounds

In recent years, USCIS denied applications for naturalization or citizenship (N-400) to applicants who were using marijuana or even worked in marijuana-related industry, for example, in the states where marijuana was legalized. Currently, work related to marijuana is interpreted by USCIS very broadly, to include anything from growing, distribution to providing IT services.

Colorado officials are warning legal immigrants that working in the state’s marijuana industry could jeopardize their legal status, after two people said they were denied U.S. citizenship because of their jobs.

Although 10 states broadly allow its use and sale, federal law still bans marijuana and immigration authorities say they are bound to follow that prohibition when reviewing citizenship applications.

The use and sale of marijuana for adults is broadly permitted in 10 states. More than 30 states allow a variety of marijuana-based products for medical purposes.

Lawyers have warned immigrants of the risk that using state-permitted marijuana could do to their legal status for years and are expanding that message to include employment by marijuana businesses. 

Please note that in 2019 USCIS issued a bulletin (pdf) clarifying that marijuana use is a disqualifying factor in citizenship applications, regardless of whether it’s legal in your state.

Policy Highlights  Clarifies that violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing GMC for naturalization even where the conduct would not be a violation of state law.  An applicant who is involved in certain marijuana related activities may lack GMC if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws. Citation Volume 12: Citizenship and Naturalization, Part F, Good Moral Character, Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5]

​Read here. 

To schedule a consultation with immigration attorney, please email.

Briefly in Russian:

Проблемы с получением грин карты и гражданства США при употреблении марихуаны, даже в штатах где она легализована. А также для тех, кто работает в сфере марихуаны, даже в тех штатах где это легально, и даже в тех случаях, когда работа не включает в себя разведение и распространение марихуаны. Перед подачей любого иммиграционного заявления, проконсультируйтесь с адвокатом.

Due to the COVID-19 pandemic, US embassies and consulates were instructed to suspend routine visa services and provide only mission critical and emergency services in late March 2020. This had a significant impact on the provision of Immigrant and Nonimmigrant Visa-related services. Posts were only able to resume limited services on a post-by-post basis beginning in July, as local conditions allowed.

In FY 2020, all US embassies approved 16,849 K-1 fiancee visas, and denied 5,143 K-1 fiancee visas (total number of K-1 visas adjudicated in FY2020 was 21,992). In FY2020 denial rate for K-1 visa was 23%. 

K-2 visas are visas for K-1 dependent children. In FY 2020, 2,460 K-2 dependent of a fiancee visas were approved and issued, and 55 K-2 visas were denied (total of 2,515 K-2 visas were adjudicated in FY2020).

We often hear questions about K-3 and K-4 visas. In FY 2020, only 2 K-3 visas were approved and 6 K-3 visas were denied (total of 8 visas adjudicated).

In FY2020, 4 K-4 visas were approved and 1 K-4 visa was denied (total of 5 visas worldwide).

This most recent statistics shows that K-3 and K-4 visas are obsolete.

To be approved for a K-1 fiancee visa, it is important to prove that the relationship is real and in good faith.

Before we can accept and give you a quote for a K-1 fiancee visa case, we usually ask our prospective clients to complete a questionnaire, answer a few questions, send us copies of the ID documents and some proof of an ongoing good faith fiancee relationship.

NIV non-immigrant visas FY2020 workload can be seen here: 

Summary of all IV and NIV issued by posts around the world in FY2020 in here. and here . 

To schedule a consultation with immigration attorney, please email us. We can't give a quote over the phone until after we received your questionnaire and reviewed your information.

​

In response to the coronavirus (COVID-19) pandemic, USCIS is extending the flexibilities it announced on March 30, 2020, to assist applicants, petitioners and requestors who are responding to certain requests from USCIS:

• RFE, Requests for Evidence;
• Continuations to Request Evidence (N-14);
• NOID, Notices of Intent to Deny;
• NOIR, Notices of Intent to Revoke;
• NOIR, Notices of Intent to Rescind;
• Notices of Intent to Terminate regional centers; and
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 60 calendar days from the issuance of a decision we made; and
• We made that decision anytime from March 1, 2020, through Sept. 30, 2021

Notice/Request/Decision Issuance Date:
This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1, 2020, and Sept. 30, 2021, inclusive.
Response Due Date:
USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. Additionally, we will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before we take any action.

Briefly in Russian:

В связи с пандемией COVID-19, USCIS продлило срок для ответа на их запросы на 60 дней. Продление относится к запросам, датированным после 1 марта 2020 и по 30 сентября 2021.

See here.

As of July 2015, backlog of pending immigration cases in all Immigration Courts: see here. 


Average wait for an individual hearing in Immigration Courts in USA: see here.  


To see denial and approval rate by specific immigration judge, select an individual judge's name here.

On August 17 2015, USCIS published L-1B adjudications policy memorandum. New memo provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess "specialized knowledge" from their foreign operations to their operations in the United States. 

New memo provides consolidated guidance on the L-1B program, superseding and rescinding all prior L-1B memoranda. This memo applies only to L-1B visas/employees with specialized knowledge (not L-1A visas).

"Preponderance of the Evidence" Standard of Proof: a petitioner seeking approval of the L-1B visa, must establish that they meets each eligibility requirement of the L-1B classification by preponderance of evidence. This standard of proof is lower than that of "clear and convincing evidence" or "beyond a reasonable doubt" standards. 

Elements of the L-1B Classification:

In order to establish eligibility for approval, the L-1B petitioner must show: 
(1) that the beneficiary possesses “specialized knowledge”; 
(2) that the position offered involves the “specialized knowledge” held by the beneficiary; and 
(3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer and/or any qualifying organization (collectively referred to as the “petitioning organization”) within the preceding 3 years. 

If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements of the L-1 Visa Reform Act, discussed below in section VI.

The new memo provides definition of "specialized knowledge".

A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: 
(1) a “special” knowledge of the company product and its application in international markets; or 
(2) an “advanced” level of knowledge of the processes and procedures of the company. 
INA 214(c)(2)(B). 

The corresponding regulation similarly defines specialized knowledge in terms of “special” or “advanced” knowledge:
[S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
8 CFR 214.2(l)(1)(ii)(D).

Other important things to keep in mind:
>>Specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. 
>>Specialized knowledge need not be proprietary or unique to the petitioning organization. 
>>The L-1B classification does not involve a test of the U.S. labor market.
>>Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.

The memo notes the following "non-exhaustive" list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:

• The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization's U.S. operations.
• The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer's productivity, competitiveness, image, or financial position.
• The beneficiary's claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
• The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
• The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
• The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace.

Other evidence that a petitioner may submit to demonstrate that an individual’s knowledge is special or advanced, includes, but is not limited to:
• Documentation of training, work experience, or education establishing the number of years the individual has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
• Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization’s U.S. operations;
• Evidence that the alien is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations;
• Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace;
• Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization’s productivity, competitiveness, image, or financial position;
• Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization;
• Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
*Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
• Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.

A petitioner may submit any other evidence it chooses. In all cases, USCIS will review the entire record to determine whether the petitioner has established by a preponderance of the evidence that the beneficiary has specialized knowledge under the totality of the circumstances. Merely stating that a beneficiary’s knowledge is somehow different from others or greatly developed does not, in and of itself, establish that he or she possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge.

USCIS can issue a RFE (Request for Evidence) for various reasons to I-129 Petitioner. Denial rate is high, RFE rate is even higher for L-1B petition. The new memo is intended to help to solve many difficulties with obtaining a L-1B visa for qualifying applicants.

See August 17, 2015 memo at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/L-1B_Memorandum_8_14_15_draft_for_FINAL_4pmAPPROVED.pdf

On November 20, 2014, the President announced a series of executive actions. However, not all of these initiatives have been implemented, and USCIS is not accepting any DAPA or expanded DACA applications at this time. 

Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. 

If you need legal advice on immigration matters, make sure that the person you rely on is an attorney who is authorized to give you legal advice. Only an attorney or an accredited representative working for a Board of Immigration Appeals-recognized organization can give you legal advice. An immigration attorney can be licensed in any state because immigration law is federal law. It's important to consult an experienced and knowledgeable attorney before submitting any immigration applications.

The Internet, newspapers, radio, community bulletin boards and local businesses storefronts are filled with advertisements offering immigration help. Not all of this information is from attorneys and accredited representatives. There is a lot of information that comes from organizations and individuals who are not authorized to give you legal advice, such as “notarios” and other unauthorized representatives. The wrong help can hurt. Here is some important information that can help you avoid common immigration scams.

Here are some examples of common immigration scams:

**Telephone Scams**.

Do not fall victim to telephone scammers posing as USCIS personnel or other government officials. In most instances, scammers will:

• request personal information (Social Security number, Passport number, or A-number);
• identify false problems with your immigration record; and
• ask for payment to correct the records.

If a scammer calls you, say “No, thank you” and hang up. These phone calls are being made by immigration scammers attempting to take your money and your credit card information. USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official.

If you have been a victim of this telephone scam, please report it to the Federal Trade Commission (FTC). Learn more about telephone scams and telephone scammers’ techniques by visiting Federal Trade Commission-Telemarketing-Scams. 

**"Notario Publico"**.

In many Latin American countries, the term “notario publico” (for “notary public”) stands for something very different than what it means in the United States. In many Spanish-speaking nations, “notarios” are powerful attorneys with special legal credentials. In the U.S., however, notary publics are people appointed by state governments to witness the signing of important documents and administer oaths. "Notarios publico,” are not authorized to provide you with any legal services related to immigration.

Please see the National Notary Association website "What is a Notary Public" for more information.

**Local Businesses who are not law firms and not attorneys or lawyers**.

Some businesses in your community “guarantee” they can get you benefits such as a:

• Visa
• Green Card
• Employment Authorization Document

These businesses sometimes charge you a higher fee to file the application than even a licensed attorney (but will tell you that attorneys charge more "for the same work"). They claim they can do this faster than if you applied directly with USCIS. These claims are false. 

**Dot-com websites - operated by non-attorneys or people not authorized to give legal advice**.

Some websites offering step-by-step guidance on completing a USCIS application or petition will claim to be affiliated with USCIS. Many of these websites are scammers or fraudsters, often taking money for blank forms or minimal assistance without attorney supervision.

USCIS has its own official website: www.uscis.gov with:

• Free downloadable forms
• Form Instructions
• Information on filing fees and processing times

Do not pay for blank USCIS forms either in person or over the Internet. You can download forms for free at www.uscis.gov.

Do not pay to a non-attorney (not a lawyer) for help with immigration paperwork, applications, affidavit. Oftentimes, they give you wrong advice and can potentially damage your chances of ever becoming a permanent resident (getting a green card).

**Green Card Lottery or DV Lottery scams**.

Once a year in fall, the Department of State (DOS) makes 50,000 diversity visas (DVs) available via random selection to persons meeting strict eligibility requirements and who come from countries with low rates of immigration to the United States. During this time or often around the year, it is common for immigration scammers to advertise in emails or websites that reference either the:

• DV lottery
• Visa lottery
• Green Card lottery

These emails and websites often claim that they can make it easier to enter the annual Diversity Immigrant Visa Program. Some scammers even identify you as a DV lottery “winner” and ask for significant amount of money "helping get a visa". These emails and websites are fraudulent. 

The only way to apply for the DV lottery is through an official government application process (Department of State website, and only when it's open, during an application period which is usually in October-November only). DOS does not send emails to applicants. 

On or after May 1st, you can visit the Department of State website to verify if you are actually a winner in the DV lottery. 

If need help, consult a licensed attorney (not one of the "green card lottery" websites).

**INS doesn't exist. It's been replaced by DHS and USCIS**.

To this day, some local businesses, websites, "notarios"  and individuals make reference to the Immigration and Naturalization Service (INS). This agency no longer exists! 

If someone refers to USCIS as "INS", it's a sign that they are not an attorney, but rather someone unqualified with little knowledge in immigration matters.

INS was dismantled on March 1, 2003, and most of its functions were transferred from the Department of Justice to three new components within the newly formed Department of Homeland Security. U.S. Citizenship and Immigration Services (USCIS) is the component that grants immigration benefits. The other two components are U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

All official correspondence regarding your immigration case will come from USCIS. USCIS will communicate with you and your attorney by mail, by mailing you notices, approved work permit and green card through USPS (postal service).

If you need a legal assistance, we will be glad to help. Our contact information is here.

Read here. 

USCIS provided statistics on approval rate, denial rate, and RFE rate for Forms I-601 and Forms I-601A, for FY2010 through FY2015.

Information was provided in response to a FOIA request.

Since FY2010 thru January of FY2015, the average approval rate for I-601s is 79.6% and the average denial rate is 20.4%. 

The average RFE rate is 18.8%.

Since March of FY2013 thru January of FY2015, the average approval rate for I-601As is 70.2% and the average denial rate is 29.8%.

The average RFE rate is 26.2%.

The total number of I-601 decisions issued since FY2010 (over the course of 5 years and 4 months) = 64,826. 

The total number of I-601As issued since the program started in FY2013 (over the course of 1 year and 11 months) = 62,973. 

The highest approval rate for I-601s was 82.4% in FY2013 (the year the provisional waiver program started). At the same time, I-601A approvals were at their lowest in FY2013 at 63.9% -- This was pre-"reason to believe" guidance so this makes sense. Total receipts for I-601As since March of FY2013 = 74,439.

Read more stats at: https://drive.google.com/file/d/0B_6gbFPjVDoxRExvLW92eXhHUEU/edit