Starting from January 4, 2010, HIV will be removed from the list of communicable diseases of public significance. What this means is that an HIV infected person will no longer be denied a visa to the United States due to HIV infection. Previously, an HIV-positive person would be denied a visa to the United States unless he or she obtains a waiver from the Department of Homeland Security. From January 4, 2010, visa applicants will not be required to take HIV tests. Hence, no waiver is required because the Centers for Disease Control and Prevention (CDC) has determined that HIV is not a communicable disease of public significance. People who had been denied a visa previously due to HIV infection will be able to reapply for a visa. To find more information on this, check the Department of State’s Q&As.
In a non-precedent decision the BIA found that a misrepresentation of the viability of marriage does not and should not lead to the conclusion that the marriage was fraudulent. Citing its precedential decisions involving marriage fraud in Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990) and Matter of Laureano, 19 I&N Dec. 1 (BIA 1983), the BIA stated that evidence of fraudulent marriage “must be documented in the alien’s file and must be substantial and probative.” (Emphasis added.) A copy of the decision can be found here.
The Administrative Appeals Office (AAO) handed down two major decisions reversing the USCIS’ denial of Immigrant Petition for Alien Worker (Form I-140). The denials in both cases were based on whether or not the employer established the ability to pay the proffered wage pursuant to 8 C.F.R. 5 204.5(g)(2), which provides that a petitioning employer needs to establish that the employer has the ability to pay the proffered wage from the date the priority date is established and continuing until the beneficiary obtains lawful permanent residence.
In both cases, the petitioners failed to establish their ability to pay the proffered wage based on the requisite initial documentation required in the regulation at 8 C.F.R. 5 204.5(g)(2) in the form of copies of annual reports, federal tax returns, or audited financial statements. However, the AAO considered the “totality of circumstances” and found that the employers did meet their burdens of establishing their ability to pay the proffered wage. In considering the totality of circumstances, the AAO stated that the USCIS may consider factors other than the employer’s net income and net current assets in assessing the totality of circumstances. Such factors include the number of years that the petitioner has been doing business, the established historical growth of the petitioner's business, the overall number of employees, the amount of compensation paid to employees and officers, the employer’s gross receipts, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that USCIS deems to be relevant to the petitioner's ability to pay the proffered wage.
These two decisions contain nuggets of information and guidance for practitioners concerned with the issue of proving an employer’s ability to pay the proffered wage. A copy of these unpublished decisions can be found here and here.
The USCIS has issued a fact sheet on naturalization through military service. Members of the military must demonstrate good moral character, knowledge of the English language, knowledge of government and history (civics), and attachment to the U.S. by taking the Oath of Allegiance to the Constitution. Ordinary requirements for naturalization such as residency and physical presence in the United States do not apply to military naturalization. The full text of the fact sheet can be found here.
"Supply me any case in which a well-founded fear of persecution was not sustained because the same leg couldn't be amputated or the same organ removed," was what an apparently irritated Federal Court Judge, Rosemary Pooler, asked of the government attorney in the case of three Guinean women seeking asylum on the basis of Female Genital Mutilation (FGM). According to the Associated Press, the government attorney was arguing against the grant of asylum for these Guinean immigrants on the ground that the practice of FGM occurs only once and the applicants do not have a fear of FGM being practiced upon them again. Admittedly, this argument is in line with a not-too-long ago BIA decision in Matter of A-T-, wherein the Board held that FGM is a “type of harm that generally is inflicted only once,” and therefore an asylum applicant “no longer has a well-founded fear of persecution based on the fear that she will again be subjected to FGM.” (Incidentally, a similar argument by the government was previously rejected the Federal Court of Appeals for the Ninth Circuit in Mohammed v. Gonzales. The Ninth Circuit held that FGM is similar to forced sterilization and, as such, “must be considered a continuing harm that renders a petitioner eligible for asylum, without more.”)
The recent report by the Associated Press took place in an oral argument in the Second Circuit. If the exchange is any indication, the Second Circuit may be going the way of the Ninth.
Did you know that there is a question as to the eligibility of Senator John McCain to be President of the United States? The Constitution of the United States under Section 1 of Article II requires that a person be: (1) a "natural born citizen" of the United States or a citizen of the United States at the time of the adoption of the Constitution; and (2) 35 years of age and must have resided in the US for 14 years. For McCain, the problem is whether or not he is a "natural born citizen." The phrase "natural born citizen" is interpreted to mean born in the United States. McCain was born on August 29, 1936 to a military father in the Panama Canal Zone when it was under U.S. jurisdiction. Inasmuch as he was not born within a state of the United States, can he be considered to be a "natural born citizen"? Well, the U.S. Senate says yes. Yesterday, the Senate passed a unanimous resolution saying that McCain is eligible to be President of the United States, which practically means, he was born in the United States. The question is: Does this settle the matter? (After all, a Senate resolution does not have the force of law.) Stay tuned. 7:15 PM GMT | Read comments(0)April 29Immigration
For McCain, the problem is whether or not he is a "natural born citizen." The phrase "natural born citizen" is interpreted to mean born in the United States. McCain was born on August 29, 1936 to a military father in the Panama Canal Zone when it was under U.S. jurisdiction. Inasmuch as he was not born within a state of the United States, can he be considered to be a "natural born citizen"? Well, the U.S. Senate says yes. Yesterday, the Senate passed a unanimous resolution saying that McCain is eligible to be President of the United States, which practically means, he was born in the United States.
The question is: Does this settle the matter? (After all, a Senate resolution does not have the force of law.)
Stay tuned.
Asylum Statistics
ØThe Executive Office for Immigration Review (EOIR) has this past week released its asylum statistics for the year 2007. Here are the highlights:
· Out of 54,957 asylum applications received by EOIR, only 12,107 have been granted and 14,850 denied. Out of the remaining, 3971 applications have been abandoned, 8333 withdrawn and 15, 612 are classified as “OTHER,” whatever that may mean.
· The country-by-country breakdown shows that El Salvador rules the roost by 10,522 asylum application in the past year, followed by Guatemala (8,078), and China (7,934).
· If you thought asylum claims were limited to the third world countries, well, think again. There were asylum applications from democracies like Belgium, Canada, Germany, the Netherlands, Norway and Sweden, to name a few. Countries with no asylum applications are those whose names you may not have heard of before: Pitcairn Islands, Kiribati, and Guadeloupe.
To find out more about this statistics, click here.
Asylum and Relocation ØOn April 22, 2008, in You v. Mukasey the U.S. Court of Appeals for the Second Circuit in New York reversed Immigration Judge Douglas Schoppert’s decision finding that a Chinese asylum applicant, Mei Ya You, could have avoided by relocating to another part of China. The Court Appeals held that it is unreasonable to expect an asylum applicant to live in hiding to avoid persecution.
Asylum and Relocation
ØOn April 22, 2008, in You v. Mukasey the U.S. Court of Appeals for the Second Circuit in New York reversed Immigration Judge Douglas Schoppert’s decision finding that a Chinese asylum applicant, Mei Ya You, could have avoided by relocating to another part of China. The Court Appeals held that it is unreasonable to expect an asylum applicant to live in hiding to avoid persecution.