Didn’t Mark “Change of Status” On H-1B Application? Cap-Gap Relief Problem Remedied

USCIS has remedied the ironic situation in which the H-1B applicants most in need of cap-gap relief were being excluded due to a requirement of the new regulation that the petition be marked for “change of status.”

To rectify the problem, USCIS is allowing the petitioners to request a change of status to make these employees eligible for the cap gap relief under the new regulation.

The request for change of status must be made within 30 days after receiving a receipt notice. Petitioners should not apply until a receipt notice is received.

USCIS explains the process as follows:

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice.

 The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.

 Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website.

 E-mail addresses for requesting change of status are:

Vermont Service Center

-  Premium Processing cases: Vscppcapgap@dhs.gov

-  Non-Premium cases: Vscnonppcapgap@dhs.gov

 California Service Center

- Premium Processing cases: ppcapgap@dhs.gov

- Non-Premium cases: nonppcapgap@dhs.gov

If an F-1 student, who is the beneficiary of a selected 2009 H-1B petition, has a pending request to change to a status other than H-1B but now wants to file under the process outlined above, he or she should withdraw the previously filed change in accordance with established procedures.

For more information, please see the USCIS announcement.

H-1B Lottery Held Monday; Winners To Receive Notice By June

USCIS has announced it held the H-1B lottery for both regular and advanced-degree exemption petitions Monday, April 14, 2008.

Those H-1B petitions selected in the lottery for fiscal year (FY) 2009 now will continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number, according to the USCIS press release.

Petitioners selected for full adjudication should receive a receipt notice dated no later than June 2, 2008, according to USCIS.

USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives.

The total adjudication process is expected to take approximately eight to 10 weeks.

For cases selected through the lottery and initially filed for premium processing, the 15-day premium processing period began April 14, the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible.  USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition.  USCIS will send a letter to the wait list petitioners to inform them of their status

USCIS said it expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks. 

H-1B Lottery Scheduled For Next Week

The H-1B lottery for FY 2009 is expected to start next week, USCIS announced.

Using a computer-generated random selection process, USCIS will start with the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree exemption will join the lottery for the regular 65,000 cap.

USCIS received almost 163,000 H-1B petitions during the filing period ending on April 7, 2008. More than 31,200 of those were for the advanced degree exemption, according to USCIS.

These numbers are up from last year’s preliminary figures, when USCIS reported receiving 133,000 filings, overall within the first two days of the April 1, the opening day of the filing season for the upcoming fiscal year.

In addition, unlike this year, the advanced degree cap was not immediately reached last year, with 12,989 being filed in connection with the opening-day rush.

New H-1B Cap Gap Rule May Not Help Those Who Need It Most

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.

 

H-1B Cap Hit; Application Lottery to Commence

USCIS announced the H-1B regular and advanced degree exemption caps for FY 2009 have been met, meaning applications will be drawn in a lottery for processing.

USCIS will use a computer-generated random selection process for all cap-subject petitions received, beginning with the 20,000 advanced degree exemption petitions first.

Once that category is hit, the excess advanced degree petitions will be added to the regular H-1B petitions for random selection for processing.

If your petition is not selected in the lottery for processing before the 65,000 visa limit is reached, USCIS will reject it and return the filing fee.

More information is available on the USCIS website. 

New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students. 

OPT Extension To Benefit H-1B Applicants and STEM Students

Optional Practical Training (OPT) time is being extended for pending H-1B applicants caught in the cap gap and for students with science, math and similar degrees, USCIS announced this week.

 

In particular, OPT will be extended automatically for those F-1 student visa holders who have applied for an H-1B work visa but who will have a gap in authorized stay because they cannot start work until Oct. 1, when visas for the next fiscal year will become available.

 

The extension will cover this gap, enabling them to continue working and alleviating concerns by employers who would be at risk of losing a valuable employees because of the unreasonably low number of H-1B work visas available annually.

 

The new rule also provides for the extension of OPT from the traditional 12 months to 29 months to students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program. (E-Verify is an internet-based system operated in partnership with the Social Security Administration that is used to check a newly hired employee’s right to work. E-Verify has been widely criticized for its error rate, forcing the employer to question employment eligibility of U.S. citizens and non-citizens alike.)

 

To be eligible for an OPT extension under the STEM program, an F-1 non-immigrant student must:

 

l Currently be participating in a 12-month period of approved post-completion OPT;

 

l Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;

 

l Be working for a U.S. employer in a job directly related to the student’s major area of study;

 

l Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program.; and

 

l Properly maintain F-1 status.

 

The STEM designated degrees include:

 

l Actuarial Science

l Computer Science (except Data Entry and Microcomputer Applications) 

l Engineering

l Engineering Technologies

l Biological and Biomedical Sciences

l Mathematics and Statistics

l Military Technologies

l Physical Sciences

l Science Technologies

l Medical Scientist (MS, PhD)

 

The new rule takes effect the day it is published in the Federal Register. That date has not been given yet, but should be soon. The public has 60 days to comment on the rule, after which the government will consider the comments and issue a final rule.

 

The rule is available here: http://www.dhs.gov/xlibrary/assets/press_opt_ifr.pdf

 

USCIS has posted frequently asked questions regarding the new rule on its website. 

 

 

 

USCIS, FBI Announce Plan to Eliminate Name Check Backlog

USCIS and the FBI have announced a joint plan to eliminate the name check nightmare that holds up processing of applications, such as for green cards and naturalization.

The agencies say they will obtain their new processing goals “by increasing staff, expanding resources, and applying new business processes,” according to a USCIS press release.

The agencies have set the following milestones for name check processing:

May 2008 - Process all name checks pending more than three years

July 2008 - Process all name checks pending more than two years

Nov. 2008 - Process all name checks pending more than one year

Feb. 2009 - Process all name checks pending more than 180 days

June 2009 - Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days.

Plan Ahead: Biometrics Now Required For Re-Entry Permits BEFORE Leaving the U.S.

Permanent residents who require a re-entry permit to return to the United States after traveling abroad for more than an year can no longer simply file and leave, according to a new USCIS requirement.

Now, they must wait for an appointment to provide fingerprints and photographs (i.e. biometrics) first.

The new policy also applies to refugees needing a Refugee Travel Document, but it does NOT apply to those seeking Advance Parole. The same Form I-131 is used for all three forms of permission to return.

This new requirement became effective March 5, 2007. After providing biometrics, the applicant may then travel and, just as before, and have the approval sent to the embassy for pick up overseas.

Although USCIS offers an expedite service, this new requirement promises to wreck further havoc on travel plans, given the frequent delays in processing applications.

Update On Family Visa Processing Under New Name Check Policy

The immigration service has provided AILA with the following explanation about processing family-based green card applications in light of the new policy regarding name checks that have been pending for more than 180 days:

“Assuming that an application is otherwise ready to be placed into the interview queue, and the only item remaining is the name check, then the application will be placed in the queue in time for the application to be ready to be scheduled for interview as of the 180th day.

If the application is not ready to be placed into the interview queue (for example, if the biometrics have not been taken), then the application will not be placed into the queue, even if the name check has been completed.

NBC reminds AILA members that the Field Offices schedule cases when they have available interview slots. The automated system by which Field Offices schedule interviews automatically schedules applications on a first-in, first-out basis (based on the date the filing was received at USCIS, which usually would be when received at the Lockbox), once the NBC identifies a case as interview ready.”

For more information, see our other articles: Updated Q and A Re USCIS New Name check Policy Available, How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks. 

Updated Q and A Re USCIS’ New Name Check Policy Now Available

USCIS has posted an updated Q & A regarding the new policy allowing for adjudication of certain applications, including those for permanent residence, if name checks have been pending for more than 180 days.

Here are two of the key questions addressed in the updated Q & A about when applicants may expect to receive news about their case.

Q9. How long will it take for USCIS to work through the cases affected by the policy change?

A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly.

USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?

A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

Naturalization Delays? What You Can Do About It

While permanent residency applicants were pleasantly surprised by the new USCIS policy allowing adjudication of applications with FBI name checks pending for more than 180 days, naturalization applicants in the same situation were disappointed to learn no such remedy is in sight for them.

So what can you do if your naturalization application is stuck in the FBI name check black hole?

One option is to file a lawsuit against USCIS and the FBI for unreasonably delaying the processing of your case. This lawsuit, known as a mandamus action, enables plaintiffs to request the court to order USCIS and the FBI to do their jobs by adjudicating the case, or in the alternative, conduct a new naturalization hearing before the judge.

Immigrants who have been waiting for years for their application to be processed have been filing such suits in federal courts around the country, generally with success.

AILF (American Immigration Law Foundation) provides an overview of the status of these delayed naturalization lawsuits on its website here.

Additional information on the use of mandamus for other DHS applications, as well as naturalizations is available through AILF here.

These lawsuits for delayed naturalization adjudications are based on INA § 336(b) (8 U.S.C. § 1447(b) ), which requires the government to make a determination on naturalization applications within 120 days of the “examination.”

If the application is not adjudicated 120 days after the “examination is conducted,” under INA § 336(b) an applicant may file a petition in district court seeking judicial adjudication of the application (i.e. the court holds its own naturalization hearing) or return it to USCIS with an order to finish processing it in a timely manner. [Note: With this latter option, you are not asking the court to approve your case. Rather, you are asking the court to compel USCIS to complete processing of your case.]

The hurdle to getting these cases into court centers on the question of whether the FBI name check is considered part of the “examination” so as to provide the court with jurisdiction to hear the mandamus action.

The government argues that the “examination” encompasses the entire process of gathering information about an applicant, including the completion of the FBI check, explains AILF. Thus, the government says, if the FBI check still is pending, the 120-day clock has not started ticking.

The plaintiffs, however, argue the 120-day period runs from the date of the naturalization interview.

Across the country, the courts are agreeing with the plaintiffs that jurisdiction exists even if the name check is not complete. A few holdouts remain, though, so it is important to know the status of the law in your jurisdiction before filing a case.

As to the remedy granted to plaintiffs, most courts have been choosing to remand applications to USCIS for decisions within a specified time frame rather than to conduct naturalization hearings. 

As these mandamus lawsuits have become more and more popular and effective, USCIS is coming up with new policies designed to thwart prospective plaintiffs.

For example, in April 25, 2006, the USCIS announced it will schedule naturalization interviews only after the FBI name check has also cleared, thereby avoiding the triggering of the 120-day clock that has served as the basis for the lawsuits.

In addition, in the early days, when a mandamus lawsuit was filed, USCIS would react by requesting the FBI to expedite the name check for processing. On February 20, 2007, however, USCIS announced that it will no longer make expedite requests based merely on filing a lawsuit.

AILF says the extent to which this new policy affects mandamus actions is still unclear. It says practitioners continue to report that the government is mooting mandamus actions by taking the action requested in the complaint; other practitioners, however, report that the U.S. Attorneys are defending the government more aggressively than in the past.

Attorney Fees

Winning plaintiffs can seek attorney’s fees and costs for pursuing their mandamus actions in federal courts under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) and 5 U.S.C. § 504 et seq. The courts, though, will only award attorney’s fees when there has been some sort of court order demonstrating that the plaintiff was the “prevailing party.”

A prevailing party can be established, for example, by a judgment in the plaintiff’s favor, or perhaps a settlement agreement or consent decree approved by the court.

If the government, however, takes the action prior to and in the absence of a court order, attorney’s fees are not recoverable.

For more on EAJA fees, see AILF’s discussion here.

Status Update Available March 30 For Processing Of Employment-Based Green Cards Under New USCIS Policy On Pending FBI Name Checks

USCIS has moved up the date to March 30, 2008 for seeking status updates on employment-based green card cases that may be eligible for processing in light of the change in policy regarding pending FBI name checks, according to AILA.

Previously, USCIS had said it would need until April 30, 2008 to sweep its files and identify cases subject to processing in light of the new policy. AILA is reporting now, however, that USCIS service centers say they will accept requests on status updates for employment-based cases effective March 30, 2008.

USCIS has made available to AILA a series of questions and answers regarding this new policy and its implementation that we have posted here.

For more background information see our other articles CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

USCIS To Take 3 Years to Clear Naturalization Backlog; Processing Time Up To 18 Months Now

USCIS is estimating it will take three years to clear the backlog of naturalization applications submitted just before the fee increase in July 2007, according to the Migration Policy Institute.

Following the summer surge, applications went from taking 6-7 months on average to process to 16-18 months.

USCIS attributes the surge in applications to both the fee increase and nationwide naturalization campaigns in the run-up to the presidential election. USCIS reports that between May-July 2007 it received 737,223 applications, 3.5 times more than  the usual number of 207,536 received during the same period the previous year, according to the Migration Policy Institute.

USCIS says it has beefed up manpower to deal with the volume, but anticipates it will be 2010 before processing times will drop back to those pre-surge.

While discussing its efforts to address the surge, USCIS makes no mention of how it plans to combat the multi-year delay of thousands of naturalization applications due to pending FBI name checks.

Immigration attorneys nationwide have been forced to address these delays by filing a mandamus lawsuit in federal court against DHS/USCIS and the FBI to compel the government to finish processing the applications. For more information about mandamus lawsuits, please visit AILF (the American Immigration Law Foundation), which is tracking mandamus actions against the government for delays of both naturalization and adjustment of status (I-485) applications.

CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy

In response to the new policy allowing for processing of green card cases and other applications with FBI name checks pending for more than 180 days, USCIS is sweeping its files looking for eligible cases, according to AILA.

AILA’s service center operations liaison confirmed USCIS is proactively searching for those adjustment of status cases that can be processed now under the new policy. USCIS told AILA its target date for identifying and acting on eligible cases is April 30, 2008.

AILA national and local offices will continue to monitor USCIS’s actions in light of the new policy. Our site will provide updates as the situation develops.

For more information, see our other articles: How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks 

How You Can Use The New CIS Name Check Policy To Jump Start Your Stalled Case

How can you take advantage of the USCIS memo this week that certain applications, including those for green cards, may be approved if name checks have been pending for more than 180 days?

AILF offers the following suggestion: If your application has been pending for more than 180 days, and otherwise meets the prerequisites described in the new policy, you may send a demand letter to the agency with the new policy memo attached requesting immediate adjudication of your application.

AILF explains that this demand letter may cause the agency to move more quickly to finish processing your case. On the other hand, if it does not prompt any action, AILF points out that the letter may be helpful if you later decide to file a mandamus lawsuit on the grounds that the agency is not implementing its new policy.

In addition, if you have a pending court action, such as a mandamus action, to which the memo would apply, AILF suggests filing a motion with the court with the USCIS memo attached so as to alert the court to the change in agency policy. The motion should state that all prerequisites for immediate adjudication have been met as required by the new policy:

1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485);

2) the FBI fingerprint and IBIS check have been completed and;

3) the FBI name check request has been pending for 180 days.

The motion may request that the court issue an order remanding to the agency for immediate adjudication of the application.

AILF further advises that if you are unsure whether the delay in the adjudication of your application is caused by FBI name check delays, you may nevertheless consider sending a demand letter to USCIS with the new policy memo attached.

AILF’s suggestion stems from its observation that the memo does not say that the new policy only applies prospectively. Therefore, AILF explains, the memo affects all applicants whose FBI name check requests have been pending for 180 days.

To read the memo outlining the new policy, click here.

In addition to green cards (I-485, Applications for Adjustment of Status), the new policy applies to: Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).

Unfortunately, it does not apply to Applications for Naturalization (N-400), which has also been the victim of lengthy delays and the subject of numerous mandamus lawsuits across the country.

For more information see our article CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks

Pending FBI name checks will no longer hold up CIS approval of green cards or several other immigration applications thanks to a new government policy issued this month.

Unfortunately, this policy will not help naturalization applications, which have also been a victim of these name check delays, often pending for 4 or more years. These delays prompted numerous mandamus lawsuits across the country to compel the FBI and USCIS to adjudicate the applications.

The new policy guidance says CIS can now approve a green card application (Form I-485) that has been pending fore more than 180 days awaiting FBI name check clearance, provided the application is otherwise approvable. Other clearances for fingerprints and IBIS (Interagency Border Inspection Services) checks must still be finished before CIS will adjudicate an application.

This new policy will help address lengthy delays in processing caused by the FBI’s failure to complete a name check in a timely manner.

This policy also applies to applications for wavier of ground of inadmissibility (Form I-601), applications for status as  temporary resident under Section 245A of the INA (Form I-687), and applications to adjust status form temporary to permanent resident under 245A (Form I-698).

If a name check reveals derogatory or adverse information, CIS will then determine if rescission or removal proceedings are warranted.

ICEPIC Details Released; Public Comments Accepted

DHS has published in the Federal Register the official notice and related proposed rulemaking regarding the implementation of ICEPIC, a massive government database of immigration and law enforcement records that it says will help fight terrorism.

The notification provides background on the new information sharing program and the rulemaking involves DHS’ request that ICEPIC be exempt from certain requirements of the Privacy Act that it says is necessary in the name of law enforcement and national security needs.

The notice and the rulemaking both solicit public comments. Comments on the rulemaking are due on or before March 10, 2008. ICE will then issue a new notice that addresses public comments, responds to OMB direction, and includes other ICE changes no later than August 27, 2008. The procedure for making comments is detailed in the DHS notice and rulemaking.

ICEPIC is already in limited operation, according to the notice. ICE says the database will help fight terrorism by enabling officials to link suspected terrorists or other criminals with associates who are in the system.

The database program compiles information on immigrants and other individuals collected from more than nine other federal sources, including DHS and law enforcement records that will be shared with federal, state, local and international law enforcement.

Critics of the program, such as the ACLU, fear innocent people will be arrested due to inaccurate information being captured in the database, pointing to the terrorism watch list as an example. The ACLU explains that if the data is bad, and that bad data migrates from one database to another, innocent people are the victims who are being stopped or labeled as suspicious.

The notification and proposed rulemaking involving ICEPIC (ICE Pattern Analysis and Information Collection) appeared in the Jan. 30 edition of the Federal Register, and are available here:

Notification: text,  PDF

Rulemaking: text,  PDF

For more information, please read our previous article: Big Brother Brightens Beam on Immigrants.

Beware the “Notario”: Tips on Avoiding Immigration Fraud

Horror stories abound in the media about the disastrous consequences caused by “notarios,” “immigration consultants,” and other non-lawyers giving bad immigration advice that causes foreign nationals to permanently losing their rights to stay in the U.S.

Everyone is vulnerable to this exploitation of newcomers. The Colombian-born wife of Georgia State Sen. Curt B. Thompson was on the brink of deportation because she relied on an unscrupulous “notario” to handle her case.

Usually foreign nationals who are the most in need of competent legal advice - those living illegally in the U.S. or who have been arrested and face deportation - are the ones most likely to fall prey to the false promises of a green card from these scam artists.

Part of the reason so many are vulnerable to this type of fraud stems from differences in the structure and regulation of U.S. legal services providers compared to the structure in other countries. The immoral take advantage of these differences to lure their victims. In particular, there are two terms that can confuse foreign nationals seeking immigration help in the US: 1) “Notary” and 2) “Immigration Consultant” or similar title.

Notary, aka Notario, Notaire

In many countries a person who carries the title of notary, (notario in Spanish, or notaire in French), is authorized to provide legal services similar to those performed by a transactional lawyer in the United States. These notaries undergo extensive education and training in their field to earn the coveted title of notary in their country. 

While a licensed notario in Mexico may be competent to dispense legal advice and to provide legal services under Mexican law, a notary in the United States has no such competency or authorization.

In the US, a “notary” or “notary public” has a specific power and purpose: Notaries are appointed by the state government to witness and verify the identity of a person signing a document and to administer oaths. A notary is not qualified to give legal advice at all. Period. Qualifications to be a notary or notary public in the United States typically consist of completing a short training course and little more.

In fact, to avoid the confusion between the two titles many states in the U.S., such as Texas, prohibit the translation of the English title “notary public” into Spanish. 

The confusion between the two terms and the corresponding danger it poses to foreign nationals in the U.S. has prompted the Secretary of State in Texas to post an article detailing the differences between a notary public in the United States and the notario publico in Mexico. 

Legal Consultant v. Immigration Consultant

Another title frequently used by nonlawyers in the U.S. that can mislead foreign nationals is ”immigration consultant” or similar such term.

Many countries have different degrees of regulated legal service providers, one of which may be called a “legal consultant.” These “legal consultants” are legitimate, but have limited authority to provide only certain types of legal advice. They even exist in the U.S., for example, in New York and California.  These are lawyers licensed in other countries who are authorized by New York or California to provide legal advice only in connection with the lawyer’s home country. These consultants generally are restricted from providing legal advice regarding U.S. laws, including immigration laws.

The term “immigration consultant” is reminiscent of these legitimate legal consultants, but while legal consultants are regulated and held to certain professional, ethical standards, those using the title “immigration consultant” historically were not regulated, which enabled immigration fraud to proliferate.

A foreign national may be mislead by this professional and legal sounding title that resemble titles familiar to him from home and think he is dealing with an authorized legal advisor, when in fact, he is not.

In recent years, a few states have cracked down on this type of misrepresentation, either prohibiting use of the term “immigration consultant” or restricting its to only certain, qualified people. Nevertheless, in most states the term remains unregulated, meaning foreign nationals are still at risk of unwittingly relying on the wrong person for help.

Finding Competent Immigration Legal Advice in the United States

Foreign nationals familiar only with their legal system do not realize the unethical people who label themselves as notarios or immigration consultants may not be qualified or authorized to give legal advice in the U.S. The consequences can be tragic, with foreign nationals being deported or trapped outside the U.S. unable to return home to husbands, wives and children.

In the U.S., the only person trained and authorized to give legal advice is a lawyer, also referred to as an attorney-at-law. No other person is competent to give legal advice. If a non-lawyer gives legal advice he or she can be charged with the unauthorized practice of law in the state.

Organizations throughout the U.S. are stepping up efforts to educate the public about the unauthorized practice of law and the dangers of relying on legal advice by nonlawyers such as the American Bar Association (ABA)  and AILA (the American Immigration Lawyers Association).

In a public service information piece, the ABA identifies these titles as red flags for those seking immigration assistance:

• Notario
• Notario Publico
• Visa Consultant
• Immigration Consultant

Other red flags the ABA cites include:

* The person told you that you could get a green card or other benefit for which you were never eligible. 

* The person said he or she could get you special treatment from a government agency such as Citizenship and Immigration Services (USCIS) or Immigration & Customs Enforcement (USICE).

* The person kept your original documents and/or your court notices and made you pay a fee in order to get them back.

* The person asked you to sign blank forms.

* The person took your money and did not provide you with any services.

* The person falsely told you he or she was a licensed attorney.

AILA has published a brochure on how to find competent immigration advice. AILA’s brochure provides the following tips:

1) Use common sense. Many people hear what they want to hear-be smart! If it sounds too good to be true, it probably is.

2) Don’t believe it if someone tells you about a secret law or claims to have connections or special influence with any agency.

3) Don’t pay money to someone to refer you to a lawyer.

4) Walk away if a lawyer doesn’t have a license.

5) Never sign an application that contains false information, and try to avoid signing blank forms. If you must sign a blank form, make sure you get a copy of the completed form and review it for accuracy before it is filed.

6) Always get proof of filing-a copy or government filing receipt-when anything is submitted in your case.

7) Insist on a written contract that details all fees and expenses and make sure you receive a receipt, especially if you pay cash. If terms change, get a written explanation.

8)  Don’t let anyone “find” you a sponsor or spouse to get you a green card-it’s illegal.

While some may view these warnings by lawyers about nonlawyers to be self-serving (and it is), the warnings are also equally necessary to educate the public so each person can make an informed choice before deciding to engage a lawyer or nonlawyer to assist with an immigration case.

Where to Find Help

If you think you have been a victim of an immigration scam artist, seek professional legal help immediately from an immigration attorney. To find a qualified immigration attorney in your area, you can contact AILA toll free at 1-800-954-0254 or online at http://www.ailalawyer.com/.

Another resource for immigration assistance is an “accredited representative.” An accredited representative has been recognized by the U.S. government as having the skill and training to assist people with their immigration matters. These representatives work with a nonprofit community or religious organization. A list of accredited representatives is available at www.usdoj.gov/eoir/statspub/raroster.htm.

For free or low-cost immigration legal services, the ABA also provides a state-by-state directory.

More information about fraudulent immigration scams in English and Spanish (Español), are available through the following resources:

English

* ABA: The Dangers Of “Notario” Fraud

* AILA: Protect Your Dreams!

* Catholic Legal Immigration Network, Inc.

Español

* ABA: El Peligro De Fraude De “Notario”

*AILA: ¡Proteja Sus Sueños!

* Catholic Legal Immigration Network, Inc.: Cuidado Con Los Notarios

DOS Officially Announces Visa Fees Increasing Jan. 1, 2008

Starting January 1, 2008, the application fee for a U.S. non-immigrant visa will increase from $100 to $131, the Department of State has announced.

Applicants who pay the prior $100 application fee before January 1 will be processed only if they are scheduled and appear for a visa interview at the consulate before January 31. 

Applicants who have already paid the $100 application fee and appear for visa interviews after January 31, 2008 must pay the difference of $31 before they will be interviewed by the consular officer.

This increase applies both to non-immigrant visas issued on machine-readable foils in passports and to border crossing cards issued to certain applicants in Mexico. 

DOS explains that the fee increase will allow the government to recover the costs of security and other enhancements to the non-immigrant visa application process. 

The Department is required by law to attempt to recover the cost of processing non-immigrant visas through the collection of the Machine-Readable Visa application fee.

Because of new security-related costs, new information technology systems, and inflation, the $100 Machine-Readable Visa fee is lower than the actual cost of processing non-immigrant visas.

DOS said that a review in 2004 revealed that the $100 fee is lower than the cost of processing non-immigrant visas and the Department has been absorbing the additional cost. 

Part of these cost increases are attributed to the new 10-fingerprint collection system. These fingerprints must be reviewed by the FBI and the cost for doing so is charged to DOS.

The application fee has increased twice since September 11, 2001, the last time in 2002.