Stories of unfair US Consular Decisions abound. People meet all the requirements of getting a particular visa, and the consulate officer denies the visa based on his or her innate prejudices. The denied applicant can almost always do nothing.

The petitioning entity in the US can usually appeal to a Congressman or Senator, who can demand the reason for the denial. However previously the Consulate did not have to give a reason for that denial under the Consular non reviewability doctrine. Under the 14th Amendment of the US Constitution, The Government cannot deny any person in the United States any rights without due process. This usually means a hearing from the applicant and a right of the applicant to defend himself. This due process was denied to individuals who were not “in” the United States. Furthermore, a Consulate decision, no matter how egregious, was not reviewable by a Federal Court in the United States.

The Appellate Court in New York (2nd Circuit) changed that in Ramadan v Napolitano. The Court held that Federal Courts have the right to review Consulate decisions, and that Consulate posts need to provide an opportunity for individuals to explain their case. This case involved a Muslim Scholar, Mr. Ramadan who was denied a visitor’s visa on the basis of the fact that he contributed money to a terrorist group that had ties to Hamas. However the contributions were made between 1998 and 2002. The US did not designate this group as a terrorist group until August 2003. Therefore Mr. Ramadan could not have known that he was making contributions to a terrorist group.

It is yet to be seen what influence this case will have in Consulates such as Chennai, which has the distinction of having the highest visa denials. Will they provide the applicants with a hearing, and if so, is this hearing going to be of any length of time to be meaningful? Additionally, many people applying for visas all over the world have limited English knowledge, and may be made to sign papers which does not state the truth.

The Rule of Law is a high ideal and although most consulate officers follow it, many are still governed by innate prejudices against little people, little corporations. Yet these are the very people that the Constitution seeks to protect. Additionally these little individuals will not have the resources to appeal their case in an US Court of Law. At the very least, maybe the documents required to prove that an applicant has the “facially legitimate and bona fide” rights to a visa, will be the same for employees of big Corporations and little start up corporations. At least this is a step in the right direction.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Permanent Resident Card (Green Card) is for living permanently in the United States. If after getting the green card, you want to live for more than six months outside the United States, there is a presumption that you do not want to live permanently in the United States, and therefore have abandoned your Permanent Residency Status.

In order to preserve your Permanent Residency status, you need to file the Reentry Permit (Form I-131) BEFORE you leave the United States. After filing you have to have a fingerprinting done, so it’s advisable to file at least 1-2 months prior to departure. Also please include a valid reason in the cover letter as to why you are leaving. The reentry Permit can be mailed to you or be picked up at the US Consulate near the foreign country that you are in. Please note that if you have committed a crime or are otherwise excludable from the United States, you cannot use the reentry permit to enter the US.

The Reentry Permit is usually valid for 2 years, before which time you have to come back to the United States. Of course you can come back and file the reentry permit again, for another two years, but you have to have a valid excuse. Usually it is not a problem if an US business transfers you to their foreign location, or if you leave to study under any particular program of study in another country. However if you are just working for a foreign company in their office in your home country, you probably will not get the reentry permit and have to forfeit your green card.

Please also bear in mind that using the Reentry Permit may not prolong your continuous residency requirements for your citizenship. Therefore getting the citizenship will be delayed beyond the normal times.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

With the economic situation worsening, many H-1B employees are loosing their job. What should they do?

By law the H-1B status terminates the day the employee looses their job. However, the CIS has usually given a one month grace period. That means that if you can find another job sponsor and file the H-1B within one month, the CIS seems fine with that. You of course have to submit copies of your last pay stub with this new transfer.

If not, you should consider either filing for a visitor’s visa or go back to your home country. A Visitor’s visa may be necessary to extend your stay to be able to settle your financial affairs here. You file the Form I-539 and explain the situation.

If you have time remaining in your H-1B (ie, you have not used up the six years), you can go back to the H-1B status any time that you find another H-1B sponsor. Even if you are back in your home country, you can file for the remaining period on your H-1B, and do not have to go back on the lottery again. Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B visa, or by leaving the US, you actually stop the running of the clock on your H-1B and preserve the remaining time. So when the economy picks up again, and trust me, it will; you do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

However be careful, B visitor’s visa is NOT indefinite, and after about 6 months on the B visa, if you are still unable to find a job, you need to leave the US. You cannot accrue illegal presence. Also the visitor’s visa adjudication at the CIS is in a mess. They may not adjudicate the application until 7-8 months, at which time they may deny it because it has already been 6 months. However, if you intend to stay for a little longer to take care of your financial affairs, (let the kids finish the school year) that’s the best option you have.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Department of Homeland Security is really out of touch with reality. In a Program called Operations Scheduled Departure, they are asking illegal immigrants who already have their final order of deportation to surrender and depart the United States. It has been started as a pilot program in California, Chicago and Phoenix on August 5. Immigration and Customs Enforcement (ICE) is advertising in local media in those places. However, only 6 of thousands of immigrants have departed so far.

Of course ICE is calling this a success. Which means that it will continue to use your tax dollars for this program. Mr Hayes, the Acting Director of Detentions at ICE, said he is disappointed at the lack of support of community based organizations.

Mr Hayes, if illegal immigrants wanted to leave the US, why would they be here illegally in the first place? Like you and us, they have children to feed, many of those children are US Citizens. And unlike “welfare bums” they have to actually work to feed their children.

TN visa is given to Canadian and Mexican Nationals under the NAFTA treaty. These individuals qualify for and work in jobs specified under a specific Schedule enumerated in the NAFTA Treaty with Canada and Mexico.

Unlike H and L visas, TN visa holders could not apply for Permanent Residency, (green card) because this visa was temporary and did not allow for dual intent (ie intent to hold both temporary and permanent visas) in the US. However, unlike visitors visa, the TN visa holder did not have to maintain foreign residency abroad. Also, a June 1996 letter by Yvonne LaFleur, Chief of Business and Trade branch at INS, said that the TN worker could do consular processing of their permanent visas. Although this letter is not binding, it has been followed by most Consular Posts.

Logistically, this was not possible earlier, because TNs were given for 1 year and most green cards took more than 1 year. So the TN visas would not be extended after that year if one applied for the Permanent Residency. However now TN visas are being given for 3 years. So many TN nationals can now probably apply for their Permanent Residency and able to do consular processing of their green card during this time. With only 65,000 H-1B visas available, it worth a shot for many desperate employers and employees.