Matter of Alcibiades Antonio PENA, Respondent

Decided June 16, 2015 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals


An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.

VISA VALIDITY

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New York, New York 10004

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My old passport has already expired. My visa to travel to the United States is still valid but in my expired passport. Do I need to apply for a new visa with my new passport?

No. If your visa is still valid you can travel to the United States with your two passports, as long as the visa is valid, not damaged, and is the appropriate type of visa required for your principal purpose of travel. (Example: tourist visa, when your principal purpose of travel is tourism). Both passports (the valid and the expired one with the visa) should be from the same country and type (Example: both Uruguayan regular passports, both official passports, etc.). When you arrive at the U.S. port-of-entry (POE, generally an airport or land border) the Customs and Border Protection Immigration Officer will check your visa in the old passport and if s/he decides to admit you into the United States they will stamp your new passport with an admission stamp along with the annotation "VIOPP" (visa in other passport). Do not try to remove the visa from your old passport and stick it into the new valid passport. If you do so, your visa will no longer be valid.

Kerry v Din - Supreme Court Decision

Din petitioned to have her husband, Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under 8 U.S.C. 1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but provided no further information. Unable to obtain a more detailed explanation, Din filed suit. The district court dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa and that the government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons. The Supreme Court vacated and remanded, with Justices Roberts, Scalia, and Thomas concluding that the government did not deprive Din of any constitutional right entitling her to due process of law. Justices Kennedy and Alito found no need to decide whether Din had a protected liberty interest, because, even assuming she did, the notice she received satisfied due process. 

Date of this Opinion: June 15, 2015

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: VISA BULLETIN FOR JULY 2015 UPDATE

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: VISA BULLETIN FOR JULY 2015 UPDATE: LAW OFFICES OF NORKA M. SCHELL'S BLOG 11 Broadway, Suite 615 New York, New York 10004 Tel. (212)564-1589 Website: www.la...

VISA BULLETIN FOR JULY 2015 UPDATE

LAW OFFICES OF NORKA M. SCHELL'S BLOG

11 Broadway, Suite 615

New York, New York 10004

Tel. (212)564-1589

Website: www.lawschell.com

The following is the summary of the visas numbers available for July 2015. 

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	01OCT07	01OCT07	01OCT07	15NOV94	15MAR00
F2A	08NOV13	08NOV13	08NOV13	15SEP13	08NOV13
F2B	15OCT08	15OCT08	15OCT08	08APR95	15MAY04
F3	15MAR04	15MAR04	15MAR04	22APR94	22AUG93
F4	22OCT02	22OCT02	22OCT02	01MAR97	08DEC91

NOTE:  For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15SEP13.  F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15SEP13 and earlier than 08NOV13.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows: 

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01OCT13	01OCT08	C	C
3rd	01APR15	01SEP11	01FEB04	01APR15	U
Other Workers	01APR15	01JAN06	01FEB04	01APR15	U
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	01SEP13	C	C	C

U.S. Department of State June 9, 2015

SCIALABBA v. CUELLAR de OSORIO

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SCIALABBA, ACTING DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al. v. CUELLAR de OSORIO et al.

certiorari to the united states court of appeals for the ninth circuit

No. 12-930. Argued December 10, 2013--Decided June 9, 2014

The Immigration and Nationality Act permits qualifying U. S. citizens and lawful permanent residents (LPRs) to petition for certain family members to obtain immigrant visas. A sponsored individual, known as the principal beneficiary, is placed into a “family preference” category based on his relationship with the petitioner. 8 U. S. C. §§1153(a)(1)–(4). The principal beneficiary’s spouse and minor children in turn qualify as derivative beneficiaries, “entitled to the same status” and “order of consideration” as the principal. §1153(d). The beneficiaries then become eligible to apply for visas in order of “priority date”—that is, the date a petition was filed. §1153(e)(1). Because the immigration process often takes years or decades to complete, a child seeking to immigrate may “age out”—i.e., reach adulthood and lose her immigration status—before she reaches the front of the visa queue. The Child Status Protection Act (CSPA) sets forth a remedy in that circumstance, providing that “[i]f the age of an alien is determined . . . to be 21 years of age or older,” notwithstanding certain allowances for bureaucratic delay, §§1153(h)(1)–(2), “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” §1153(h)(3).

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: JUNE 2015 VISA BULLETIN UPDATES

Visa Availability & Priority Dates

The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued to individuals seeking permanent resident status (a green card) each year.

Immigrant visas available to “immediate relatives” of U.S. citizens are unlimited, so are always available.  Immediate relatives include, parents of a U.S. citizen, spouses of a U.S. citizen and, unmarried children under the age of 21 of a U.S. citizen. 

Immigrant visa numbers for individuals in a “preference category” are limited, so are not always available.  For more information on both family-based and employment-based preference categories, please see the “Green Card Eligibility” page.

The U.S. Department of State is the agency that distributes visa numbers. Family sponsored preference categories are limited to a minimum of 226,000 per year and employment based preference visas are limited to a minimum of 140,000 per year.  In addition, there are limits to the percentage of visas that can be allotted to each country.

Because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. To distribute the visas among all preference categories, the Department of State gives out the visas by providing visa numbers according to the preference category and one’s priority date. The priority date (explained below) is used to determine an individual’s place in line in the visa queue.  When the priority date becomes current, the individual will be eligible to apply for an immigrant visa.

JUNE 2015 VISA BULLETIN UPDATES

LAW OFFICES OF NORKA M. SCHELL BLOG

11 Broadway, Suite 615

New York, New York 10004

Tel. (212) 564-1589/(973)621-9300

Website: www.lawschell.com

Posted by: NYC Immigration Attorney Norka M. Schell

This is a summary of the U.S. Department of State Visa Bulletin which shows the availability of immigrant numbers during the June 2015.


 FAMILY-SPONSORED PREFERENCES                                         

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	01SEP07	01SEP07	01SEP07	15NOV94	01MAR00
F2A	01OCT13	01OCT13	01OCT13	08AUG13	01OCT13
F2B	15SEP08	15SEP08	15SEP08	08APR95	01MAY04
F3	22FEB04	22FEB04	22FEB04	15APR94	15AUG93
F4	08SEP02	08SEP02	08SEP02	01MAR97	08NOV91

EMPLOYMENT-BASED PREFERENCES

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUN13	01OCT08	C	C
3rd	15FEB15	01SEP11	22JAN04	15FEB15	01JAN05
Other Workers	15FEB15	01JAN06	22JAN04	15FEB15	01JAN05
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	01MAY13	C	C	C

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: VISA WAIVER PROGRAM (VWP)

IMMIGRATION AND POLICY BY NYC BUSINESS IMMIGRATION LAWYER - Phone (212) 564-1589: VISA WAIVER PROGRAM (VWP): LAW OFFICES OF NORKA M. SCHELL, LLC BLOG 11 Broadway, Suite 615 New York, NY 10004 Tel. (212)564-1589 / (973)621-9300 Website: w...

VISA WAIVER PROGRAM (VWP)

LAW OFFICES OF NORKA M. SCHELL, LLC BLOG

11 Broadway, Suite 615

New York, NY 10004

Tel. (212)564-1589 / (973)621-9300

Website: www.lawschell.com

Citizen or National of a VISA WAIVER PROGRAM Designated Country* 

In order for a person to qualify for the Visa Waiver Program, he or she must be a citizen or national of VWP-participant country. 

The following 38 countries are Visa Waiver Program participants:

A Andorra Australia Austria

B Belgium Brunei

C Chile Czech Republic

D Denmark

E Estonia

F Finland France

G Germany Greece

H Hungary

I Iceland Ireland Italy

J Japan

L Latvia Liechtenstein Lithuania Luxembourg

M Malta Monaco

N Netherlands New Zealand Norway

P Portugal

S San Marino Singapore Slovakia Slovenia South Korea Spain Sweden Switzerland

T Taiwan

U United Kingdom

Each Traveler Must have authorization under ESTA

In order to travel without a visa on the VWP, you must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier. ESTA is the Department of Homeland Security (DHS), Customs and Border Protection's (CBP) automated web-based system to determine eligibility to travel without a visa to the United States for tourism or business. Visit the EATS webpage on the CBP website for more detailed information, to apply for ESTA, and pay the fee.

Travel Must be on an Approved Carrier

If arriving by air or sea, you must be arriving on an approved air or sea carrier. You must also have a round trip ticket indicating return passage to a country outside the United States.

Previous Compliance and No Prior Visa Ineligibilities

If you have had a U.S. visa before or previously traveled to the United States under the VWP or another status, you must have complied with the conditions of previous admissions to the United States, and you must not have previously been found ineligible for a U.S. visa.

Travelers should be aware that by requesting admission under the Visa Waiver Program, they are generally waiving their right to review or appeal a CBP officer’s decision as to their application for admission at the port of entry. See the CBP website for additional details.

Have the Correct Type of Passport

You must have a passport that is valid for at least 6 months after your planned departure from the United States (unless exempted by country-specific agreements). For families, each member of your family, including infants and children, must have his/her own passport. 

* Text was extracted from U.S. Department of State - Bureau of Consular Affairs.

For more information about the Visa Waiver Program, contact our office at (212)564-1589 or visit the Department of State - Bureau of Consular Affairs at website at www.travelstate.gov.